Vigilant Blog

News, trends and analysis in employment law, HR, safety & workers' comp

Apr 09, 2020

CDC guidance on face coverings raises questions for employers

COVID-19Safety and Health 

On April 3, 2020, the federal Centers for Disease Control and Prevention (CDC), issued guidance advising all individuals to wear face coverings in public settings where social distancing is difficult to maintain, to slow the spread of COVID-19 (coronavirus). While the guidance is directed at individuals, it would also apply while employees are working. We’ve seen an uptick in employees wanting to wear face coverings at work and employers need to understand the potential implications of allowing employees to do so. In particular, if an employee wears a respirator at work, it triggers certain requirements under the federal Occupational Safety and Health Act, or state health and safety laws. Below is a list of questions and answers to help you understand your rights and responsibilities as an employer.

Please note that the discussion below doesn’t apply to employers in the health care industry. Review the CDC’s guidance for healthcare professionals, as well as OSHA’s guidance for healthcare workers and employers to better understand your responsibility to provide proper respiratory protection. This guidance also doesn’t apply to workers whose jobs already require respiratory protection under existing Occupational Safety and Health Administration (OSHA) regulations due to airborne contaminants.

What has the CDC recommended?
The CDC advises people to start wearing simple cloth face coverings in public settings, particularly in areas of widespread community transmission, if it isn’t possible to keep at least six feet apart from others. The purpose is to prevent droplets from leaving their mouth as they’re exhaling, speaking, sneezing, or coughing in public. It’s worth noting that wearing cloth face coverings won’t prevent an individual from inhaling droplets that are in the air; only a true respirator, as discussed below, will provide that level of protection. The CDC specifically states that individuals shouldn’t seek out surgical masks or N-95 respirators, as those limited supplies are critical for health care workers and emergency responders. Rather, the CDC advises people to wear a simple cloth face covering and even provides a tutorial on how to make your own from items around the home (e.g., scarf, bandana, rubber bands, etc.).

Is there a difference between cloth face coverings, surgical masks, and respirators?
Yes. As discussed above, a cloth face covering can be made from common household items. Surgical masks, which are loose-fitting but professionally manufactured, are similar in their ability to prevent droplets from leaving the wearer’s mouth but they also protect the wearer against splashes or large droplets, which is crucial in health care settings. Surgical masks aren’t designed to stop an individual from inhaling small particles in the air that may contain the virus. A respirator, on the other hand, is made of a material that’s designed to filter out certain particles from being inhaled (the filtering material or design will differ depending on the hazard being addressed). All respirators are tight-fitting to the individual’s face. In order to be considered a respirator under regulations issued by the Occupational Safety and Health Administration (OSHA), it must be certified by the National Institute for Occupational Safety and Health (NIOSH). OSHA offers a helpful fact sheet to understand the differences between a surgical mask and a respirator.

Why is it important to understand the difference?
When employees wear respirators in the workplace, employers are required to implement a respiratory protection program. The requirements of the program are different depending on the type of respirator worn, and whether the use is voluntary or required by the employer. To understand your obligations under a respiratory protection program, review our Model Policy, Respiratory Protection Program.

OSHA has stated that surgical masks aren’t respirators and therefore don’t trigger an employer’s obligation under OSHA’s current respiratory protection rules. We believe cloth face coverings likely would be treated the same way, since they aren’t tight-fitting, nor are they certified by NIOSH. However, OSHA has yet to weigh in. We’ll keep members updated if OSHA provides any guidance on this important issue.

Should we allow employees to wear cloth face coverings or surgical masks?
Cloth face coverings, yes. Surgical masks, no. The CDC has stated that surgical masks should be reserved for health care workers. Since the CDC has advised individuals to wear cloth face coverings in public, we recommend that you allow employees to do so. While a cloth face covering won’t require you to establish a respiratory protection program, it’s still a good idea to provide employees with some basic information, such as the CDC’s fact sheet on how to properly wear and wash a face covering. You should also monitor employee use to ensure that it’s not creating a hazard in your workplace. For example, if you notice an employee setting down their cloth face covering on a lunch table, you should talk with the employee about that hazard and where to properly store their face covering going forward. (Also be sure the table is cleaned before the next person sits down.) Talk with your Vigilant safety professional about how to educate and monitor employees as they wear face coverings in your workplace.

Should we allow employees to wear fitted respirators due to coronavirus (when not otherwise required for their job)?
Possibly. Under OSHA regulations, an employer may (but isn’t required to) allow the voluntary use of a respirator. The type of respirator being worn by the employee will trigger different obligations by the employer. If an employee wants to wear a filtering facepiece respirator (e.g., dust mask or N-95 respirator), employers must: (1) provide the employee with a specific government-approved notice about proper use of such a respirator; and (2) ensure that employees clean, inspect, maintain, and store their respirator according to the manufacturer’s recommendations. The CDC is asking members of the public to reserve N-95 respirators for health care workers. For other types of filtering facepieces (dust masks), it may be reasonable to allow employees to wear them if they feel safer doing so (provided you follow the requirements of voluntary respiratory protection use). If the employee wants to wear a more restrictive form of respirator (e.g., supplied air, powered air purifier, or negative pressure), you’ll be required to have a written respiratory protection program and require the employee to undergo a medical evaluation to determine the employee’s physical ability to wear the respirator. For more information about the voluntary use of respirators, review our Model Form, Respirators: Requirements for Voluntary Use.

Should we provide cloth face coverings to our employees?
This is a judgment call. If you’re able to obtain a sufficient supply of cloth face coverings and you can ensure they’re properly laundered after each use and inspected before wearing, it may help reassure employees whose jobs require them to be physically present in the workplace, especially if they’re unable to keep at least six feet away from other people. Even better would be to locate a supply of disposable face masks to provide your employees, if possible. Employees who wear the cloth face coverings are reducing the risk that they could inadvertently spread illness to their coworkers. Unfortunately COVID-19 has sometimes been spread in situations where people carrying the disease were asymptomatic and had no idea they were contagious. Providing the coverings isn’t a substitute for implementing engineering controls and administrative controls to protect employees from exposure to COVID-19 or any other hazardous workplace condition, however. See our Model Policy, Social Distancing Policy for ideas on how to ensure workers maintain a safe distance from each other to the extent possible.

Tips For Employers: You’ll need to weigh all of the considerations before allowing, providing, or denying the use of cloth face coverings or respirators in your workplace. Consult with your Vigilant safety professional if you need assistance with updating or implementing a respiratory protection program.

This website presents general information in nontechnical language. This information is not legal advice. Before applying this information to a specific management decision, consult legal counsel.