OSHA [Sort of] Clarifies Employers’ Obligations Regarding Cloth Face Coverings
Some states have issued orders requiring employers to provide cloth face coverings to employees as a condition for reopening. The Occupational Safety and Health Administration (“OSHA”) has stated that it will not mandate that employers provide cloth face coverings to their employees, although it indicates that requiring employees to wear cloth face coverings in the workplace may not be a bad idea in some circumstances.
Cloth Face Coverings Are Not PPE Regulated
In its latest technical guidance regarding masks in the workplace, OSHA explained that its decision is based on the fact that cloth face coverings are not personal protective equipment (PPE). This is because cloth face coverings do not protect the wearer from infectious airborne agents — here, COVID-19 — due to their “loose fit and lack of seal or inadequate filtration.” As such, OSHA’s PPE standards do not apply to cloth face coverings, and employers are not required to provide such masks to employees.
Whether an Employer Requiring Cloth Face Coverings Could Be Relevant in Determining General Duty Clause Compliance
Does this mean that OSHA will refrain from issuing citations to employers that don’t require employees to wear cloth face coverings in the workplace? Not necessarily. In the same guidance, OSHA reminds employers that the General Duty Clause of the OSH Act still applies during the COVID-19 pandemic, and states that “[c]ontrol measures may include a combination of engineering and administrative controls, safe work practices like social distancing, and PPE.” Under the General Duty Clause, employers must furnish a place of employment free from recognized hazards that are likely to cause death or serious physical harm. In trying to fulfill that requirement, employers may decide to implement measures that include requiring or recommending cloth face coverings as a means of source control. Thus, while cloth face coverings may not be PPE under OSHA standards, an employer’s failure to take sufficient precautions to protect employees could result in that employer being cited.
In sum, the decision of whether to provide cloth face coverings is left to the employer’s discretion. Whether the employer should require employees to wear them depends on the ability of the employer to provide a safe workplace otherwise. Employers that do choose to require cloth face coverings should keep several things in mind. First, they should consider whether the face coverings are consistent with a particular work environment or while employees are engaged in certain job tasks. Second, employers should remember that the use of cloth face coverings does not remove an employer’s duty to implement social distancing measures as a means of source control. Finally, cloth face coverings are not adequate substitutes for respirators in situations where respirators are required.
For more information on OSHA’s respirator standards and cloth face coverings, employers should consult OSHA’s memoranda regarding enforcement of its respirator standards and the CDC’s guidance on cloth face coverings.
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This information is provided by Vinson & Elkins LLP for educational and informational purposes only and is not intended, nor should it be construed, as legal advice.