By: RSPA General Counsel Bob Goldberg
Although most resellers are considered “essential businesses” we are now in the process of bringing back employees to business locations. Employers want to do so properly and employees seek assurances that the environment is safe. Of course social distancing must be observed and frequent hand washing encouraged. The question arises regarding Personal Protection Equipment (“PPE”) and whether it should be required or used voluntarily by employees?
The Occupational Safety and Health Administration (“OSHA”) has published detailed standards and guidance relating to employees wearing personal protective equipment which includes facemasks. The guidance makes a significant difference between an employer that mandates employees to wear a facemask and whether the employees do so voluntarily. There is a further distinction to whether the employee is going to wear a respirator or a simple cloth or surgical mask.
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 Standards, which requires respirators when “necessary to protect the health” of an employee. 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. 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.
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 wearing one is voluntary.
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 interim OSHA guidance encourages some degree of flexibility in the enforcement of respirator fit testing and use during the 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.
Providing employees with necessary PPE is essential in curtailing the coronavirus. However, when doing so make certain you know the rules surrounding them. Allowing employees to voluntarily wear masks is much less stringent.
