Unmasking the Confusion: COVID-19 – Are Employees Required to Wear Masks?
In light of North Carolina entering “Phase 1” of lifting its COVID-19 restrictions, this article addresses issues involving employer requirements and employee use of facemasks, respirators, gloves, and other personal protective equipment (“PPE”).
Here is what our government agencies are recommending.
Equal Employment Opportunity Commission (“EEOC”)
The EEOC released guidance that indicates an employer may require employees to wear PPE to reduce COVID-19 transmission.
Center for Disease Control (“CDC”)
In the non-healthcare setting, the CDC recommends individuals wear cloth face coverings in public and where social distancing measures are difficult to maintain. The CDC guidance specifies that the recommended cloth face coverings are not surgical-grade masks or N95 respirators, which are critical supplies that must be reserved for high risk individuals.[i]
Federal Emergency Management Agency (“FEMA”)
FEMA has also issued PPE-related guidance. In the non-healthcare setting, FEMA provides that PPE is generally not required by law as part of routine duties performed even by critical infrastructure employees. FEMA also provides valuable ways employers can try to obtain PPE during the shortage. For employers whose workforce is not legally required to wear PPE, FEMA recommends considering to implement barrier controls (e.g. Plexiglass barriers where feasible) and cloth face coverings and to follow the recommendations of the CDC. The FEMA guidance explicitly discourages such employers from attempting to obtain medical or industrial-grade PPE for its workers due to nationwide shortages of such equipment.
Occupational Safety and Health Administration (“OSHA”)
There is no specific standard covering COVID-19, but OSHA has issued guidance on workplace preparedness. Furthermore, the OSHA general duty clause has not been interpreted to require all employers to provide PPE or require employees to wear PPE. As was the case prior to COVID-19, such determination is left to the employer and is based on the employer’s assessment of risk factors to its employees. However, employers should now include COVID-19 concerns in their risk factor assessment, and OSHA has provided guidance to employers in classifying employee risk of COVID-19 exposure.
Per current OSHA guidelines:
- PPE is not recommended for workers in the lower risk group.
- For the medium risk group, OSHA recommends employers consider if PPE is appropriate and, if so, the proper type of PPE.
- Employers will also need to keep in mind that medical-grade PPE will be near impossible to come by and N95-type masks should be reserved for only high risk workers and situations.
Employers Implementing Mandatory Use of PPE by Employees
If an employer decides to implement a PPE policy, it should be reduced to writing and distributed to all employees. Standards, recommendations, and other guidance is rapidly evolving, so it will certainly be difficult to craft a perfect policy at the outset. However, it is best to have a written policy in place that can be amended later than to not have anything in place at all.
The written policy should generally include:
- An explanation with facts addressing the reason for the policy (e.g., to protect everyone involved);
- Employees covered under the policy (e.g., all employees);
- Instruction for proper use;
- Specifications on when face coverings are required (e.g., at all times inside the building);
- Instructions for disposal/cleaning; and
- Consequences for not abiding by the policy. Employers should have all employees sign the policy, and should continue to update the policy based on the most current guidelines.
Employers Allowing Voluntary Use of PPE Respirators By Employees
Employers not requiring PPE but permitting voluntary use of respirators must distribute OSHA’s Appendix D to 29 CFR 1910.134 and may need to abide by other requirements of 29 CFR 1910.134(c)(2) including a written respiratory protection program. Such employers should review the prior link carefully and consult with your legal department and/or outside counsel to review the policy to ensure all requirements are met. However, employers are not required to include a written respiratory protection program where its employees are only using cloth or surgical masks (as opposed to respirators) on a voluntary basis (but should still distribute Appendix D). See Footnote 1 below regarding masks and respirators for more information.
All employers will need to make an independent decision regarding the use of PPE in light of COVID-19 concerns, which will vary depending on the type of employer and the work performed by its employees. In the non-healthcare setting, the CDC recommends individuals wear cloth face coverings in public and where social distancing measures are difficult to maintain. While no law or regulation otherwise requires face coverings in the non-healthcare setting, on balance, employers with a workforce that falls into the lower or medium risk categories will likely want to permit voluntary use of PPE and allow the employees to use their own PPE.
This update provides general information and does not provide tailored legal advice or establish an attorney-client relationship.
[i] Facemasks include simple cloth face coverings and medical-grade surgical masks. N95 masks may be considered a “respirator” depending on its features. The distinction between facemasks and respirators is important due to specific and more stringent employer requirements where respirators are mandatory. See https://www.osha.gov/laws-regs/standardinterpretations/2011-11-22-0 for a detailed discussion of these issues.