As employers begin considering return to work strategies, many are wondering whether they should permit or require individuals to wear facemasks at work. It may be surprising to many companies, but the Occupational Safety and Health Administration (“OSHA”) has published detailed standards and guidance relating to employees wearing personal protective equipment (“PPE”), which can include simple facemasks. OSHA has also published guidance on dealing with COVID and guidance for employees in the workplace. Moreover, there are big differences between whether an employer mandates employees wear a facemask and whether employees do so voluntarily.
Q: What does OSHA consider to be a mask or a respirator, and does this cover simple cloth or surgical masks?
A: OSHA breaks down masks into two categories:
1) Respirators: A respirator is a device that protects employees from inhaling particles or other dangerous substances. Usually, they are fitted closely to the user’s face and do not allow air to flow between the sides of the mask and the user’s face. The whole idea is that the air should flow only through the mask and thus filters the air. Masks such as N95 masks are considered respirators. Respirators are subject to the OSHA Respiratory Protection Standard, which requires respirators when “necessary to protect the health” of an employee, as well as OSHA PPE Standard.
2) PPE: A loose-fitting mask that is not intended to filter air, such as a surgical mask or the masks that individuals are making at home in response to COVID-19, are not considered respirators because they do not filter the air. (see https://www.osha.gov/laws-regs/standardinterpretations/2017-12-20) Loose fitting masks are, however, still subject to the OSHA PPE Standard, which requires proper protection if necessary to prevent a job‑related injury or impairment.
Knowing which type of mask employees are permitted or required to wear may have a significant impact on what the employer is obligated to do because the rules for respirators are much more rigorous than for PPEs. Notably, however, recent OSHA enforcement guidance from March 14, 2020, and April 3, 2020, has significantly relaxed enforcement criteria for the use of respirators. OSHA Area Offices are encouraged to use discretion in enforcing fit testing requirements for N95 respirators, the use of non-N95 respirators, and the reuse of respirators.
Q: Is there a difference if an employer requires employees to wear a loose fitting face mask or merely permits employees to wear a loose fitting face mask?
A: Yes – there are significant differences between requiring employees to wear a mask and permitting an employee to wear a mask (even if the employer provides the mask to the employees).
Under the OSHA PPE Standard, which applies to all PPE including loose fitting cloth face masks, if an employer requires employees to wear a PPE, the employer must perform a hazard assessment, consider other alternative options to protect employees, such as installing a barrier between workers or workers and customers, identify and provide appropriate PPE for employees, train employees in the use and care of PPE, clean and replace PPE as needed, and create a plan that is periodically reviewed.
However, if the employer allows the employees to voluntarily wear a loose fitting mask, none of these rules apply. Even if the employer pays for the masks and provides them to employees, it can still be a voluntary program. The employer should tell the employees, preferably in writing, that the masks are not required and that wearing one is voluntary.
Q: Is there a difference if an employer requires employees to wear a respirator like an N95 mask or merely permits employees to wear a respirator like an N95 mask?
A: Yes. If the mask is considered a respirator and the employer requires employees to wear a mask, the obligations under the OSHA rules are much more detailed and stringent, including that the employer must provide a medical exam, make sure that the mask fits properly, and provide training to employees. Though, again, interim OSHA guidance encourages some degree of flexibility in the enforcement of respirator fit testing and use during current pandemic.
If the employer permits employees to voluntarily wear a respirator, then the employer must comply only with the Voluntary Use Requirements under the Respiratory Protection Standard. That means that the employer should: (1) determine whether there is a hazardous condition that requires wearing a mask; (2) determine that the employee is not creating a new or different hazard by wearing a mask in the workplace (e.g., the mask can’t get caught in a moving part or machinery or otherwise obscure the employee’s vision and thus create its own hazard; (3) make sure that any masks that are used are clean and in good repair; and (4) provide written information to employees about wearing masks that has been drafted as required by Appendix D to 1910.134.
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