Author: Brad A. Molotsky

The U.S. Department of Labor’s Occupational Safety and Health Administration (OSHA) has published a series of frequently asked questions and answers regarding the use of masks in the workplace.

The new guidance provides answers to the frequently asked questions of:

• 1.  What are the differences between cloth face coverings, surgical masks and respirators?
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• Cloth face coverings:

  • May be commercially produced or improvised (i.e., homemade) garments, scarves, bandanas, or items made from t-shirts or other fabrics.
  • Are worn in public over the nose and mouth to contain the wearer’s potentially infectious respiratory droplets produced when an infected person coughs, sneezes, or talks and to limit the spread of SARS-CoV-2, the virus that causes Coronavirus Disease 2019 (COVID-19), to others.
  • Are not considered personal protective equipment (PPE).
  • Will not protect the wearer against airborne transmissible infectious agents due to loose fit and lack of seal or inadequate filtration.
  • Are not appropriate substitutes for PPE such as respirators (e.g., N95 respirators) or medical face masks (e.g., surgical masks) in workplaces where respirators or face masks are recommended or required to protect the wearer.
  • May be used by almost any worker, although those who have trouble breathing or are otherwise unable to put on or remove a mask without assistance should not wear one.
  • May be disposable or reusable after proper washing.
  •  

  Surgical masks:

  • Are typically cleared by the U.S. Food and Drug Administration as medical devices (though not all devices that look like surgical masks are actually medical-grade, cleared devices).
  • Are used to protect workers against splashes and sprays (i.e., droplets) containing potentially infectious materials. In this capacity, surgical masks are considered PPE. Under OSHA’s PPE standard (29 CFR 1910.132), employers must provide any necessary PPE at no-cost to workers.¹
  • May also be worn to contain the wearer’s respiratory droplets (e.g., healthcare workers, such as surgeons, wear them to avoid contaminating surgical sites, and dentists and dental hygienists wear them to protect patients).
  • Should be placed on sick individuals to prevent the transmission of respiratory infections that spread by large droplets.
  • Will not protect the wearer against airborne transmissible infectious agents due to loose fit and lack of seal or inadequate filtration.
  • May be used by almost anyone.
  • Should be properly disposed of after use.
  •  

  Respirators (e.g., filtering facepieces):

  • Are used to prevent workers from inhaling small particles, including airborne transmissible or aerosolized infectious agents.
  • Must be provided and used in accordance with OSHA’s Respiratory Protection standard (29 CFR 1910.134).
    • Must be certified by the National Institute for Occupational Safety and Health (NIOSH).
      • OSHA has temporarily exercised its enforcement discretion concerning supply shortages of disposable filtering facepiece respirators (FFRs), including as it relates to their extended use or reuse, use beyond their manufacturer’s recommended shelf life, use of equipment from certain other countries and jurisdictions, and decontamination.
    • Need proper filter material (e.g., N95 or better) and, other than for loose-fitting powered, air purifying respirators (PAPRs), tight fit (to prevent air leaks).
    • Require proper training, fit testing, availability of appropriate medical evaluations and monitoring, cleaning, and oversight by a knowledgeable staff member.
      • OSHA has temporarily exercised its enforcement discretion concerning annual fit testing requirements in the Respiratory Protection standard (29 CFR 1910.134), as long as employers have made good-faith efforts to comply with the requirements of the standard and to follow the steps outlined in the March 14, 2020, and April 8, 2020, memoranda (as applicable to their industry).
    • When necessary to protect workers, require a respiratory protection program that is compliant with OSHA’s Respiratory Protection standard (29 CFR 1910.134). OSHA consultation staff can assist with understanding respiratory protection requirements.
    • FFRs may be used voluntarily, if permitted by the employer. If an employer permits voluntary use of FFRs, employees must receive the information contained in Appendix D of OSHA’s Respiratory Protection standard (29 CFR 1910.134).
• 2.  Are employers required to provide cloth face masks to workers?  NO.  Cloth face coverings are not considered personal protective equipment (PPE) and are not intended to be used when workers need PPE for protection against exposure to occupational hazards. As such, OSHA’s PPE standards do not require employers to provide them.
• 3.  Should workers wear cloth face masks while at work?  YES
• 4.  If workers wear cloth face masks at work, should employers still look to ensure some level of social distancing?  YES
• 5.  How am I supposed to keep my cloth mask clean? see attached suggested procedures from the CDC – https://www.cdc.gov/coronavirus/2019-ncov/prevent-getting-sick/diy-cloth-face-coverings.html
• 6.  Are surgical masks or cloth face masks acceptable respiratory protection in the construction industry when respirators would be need but are not available? 

  NO. Employers should not be using  surgical masks or cloth face coverings when respirators are needed.

  In general, employers should always rely on a hierarchy of controls that first includes efforts to eliminate or substitute out workplace hazards and then uses engineering controls (e.g., ventilation, wet methods), administrative controls (e.g., written procedures, modification of task duration), and safe work practices to prevent worker exposures to respiratory hazards, before relying on personal protective equipment, such as respirators. When respirators are needed, OSHA’s guidance describes enforcement discretion around use of respirators, including in situations in which it may be necessary to extend the use of or reuse certain respirators, use respirators beyond their manufacturer’s recommended shelf life, and/or use respirators certified under the standards of other countries or jurisdictions.

• For more information on this topic and the actual FAQs please go to https://www.osha.gov/SLTC/covid-19/.  Note that the OSHA guidance is NOT a standard or a regulation, rather it is advisory in nature and is intended to provide direction from OSHA.

Duane Morris has created a COVID-19 Strategy Team to help organizations plan, respond to and address this fast-moving situation. Contact your Duane Morris attorney for more information. Prior Alerts on the topic are available on the team’s webpage.

For Further Information:

If you have any questions about this post, please contact Brad A. Molotsky, Delphine O’Rourke, Sharon Caffey, Elizabeth Mincer or the attorney in the firm with whom you are regularly in contact.

Be well and stay safe!