All information in this COVID-19 Response Resource issue is effective as of April 14, 2020.
While initially, the Centers for Disease Control and Prevention (CDC) instructed that facemasks do not need to be worn by the general public to guard against transmission of COVID-19, on April 3, 2020, the organization changed its position citing new evidence for its revised position.
Because recent studies have shown the virus can be spread by individuals who are asymptomatic or pre-symptomatic, the CDC now recommends “wearing cloth face coverings in public settings where other social distancing measures are difficult to maintain (e.g., grocery stores and pharmacies) especially in areas of significant community-based transmission.”[1] The organization suggests making the cloth facemasks “from household items” or other “common materials at low cost . . . as an additional, voluntary public health measure.”[2] It has even provided step-by-step instructions for fashioning homemade masks as well as information about how to wear and care for facemasks. Notably, this measure is not to protect the individual wearing the mask but to protect others from someone who has the virus but is not yet exhibiting symptoms.[3]
What does this new guidance mean for employers, if anything? It is important to note that the CDC merely suggests that the general public wear cloth facemasks as a voluntary preventive measure; there is no requirement to wear them. And, in fact, the voluntary use of facemasks to prevent the spread of COVID-19 has been criticized as such use may cause a false sense of security in the wearer and may actually result in further transmission of the virus. This can occur, for example, by touching the front of the mask after it has been exposed to the virus and then touching the eyes, nose or mouth. As the CDC and other organizations have recognized, the best ways to prevent the spread of the virus are frequent handwashing, avoiding contact with the face and social distancing. Facemasks for the general public are simply an additional measure that may help where social distancing measures are difficult to maintain.[4]
The Occupational Safety and Health Administration (OSHA) has identified specific types of workers with “potential occupational exposures” to COVID-19 that would warrant more stringent protective measures, including those involved in healthcare, postmortem care, laboratory work, airline work, retail work, correctional facility work, in-home repair services, border protection, solid waste and wastewater management operations, business travel, and employees “in critical and high customer-volume environments”[5] Yet OSHA still asserts that, “For most types of workers, the risk of infection with [COVID-19] is similar to that of the general American public.”[6] However, it also cautions that “Employers and workers in operations where there is no specific exposure hazard should remain aware of the evolving community transmission. Changes in community transmission may warrant additional precautions in some workplaces or for some workers not currently highlighted . . . .”[7]
Although OSHA has not promulgated any specific standards in light of the recent pandemic, it has indicated that some existing requirements “apply to preventing occupational exposure to [COVID-19].[8] Specifically, OSHA has identified the following as most relevant to employers: its Personal Protective Equipment (PPE) standards, which require using gloves, eye, face and respiratory protection where necessary to prevent injury or impairment as a result of absorption, inhalation or physical contact with certain occupational hazards or irritants; its Respiratory Protection standards, which require that a respirator be provided “to each employee when such equipment is necessary to protect the health of such employee;” and its General Duty Clause, which requires employers to furnish “employment and a place of employment which are free from recognized hazards that are causing or are likely to cause death or serious physical harm.” In addition, it has indicated that “COVID-19 can be a recordable illness if a worker is infected as a result of performing their work-related duties.”[9]
Although it is unlikely that most employees will need to wear facemasks, there are some important rules an employer must follow if it either requires facemasks or allows employees to wear them voluntarily to curb the spread of COVID-19. For instance, if employees are required to wear facemasks, the employer has a duty to provide the facemasks at no cost to employees and to train employees regarding use of the masks.[10] This training includes explaining the limitations of the masks, when to use them; how to properly put them on and take them off; and how to properly dispose of or disinfect, inspect for damage and maintain them.[11] Further, if an employee is required but unable to wear a mask due to a disability, an employer may need to provide reasonable accommodations pursuant to the Americans with Disabilities Act (ADA).
If employees are allowed to voluntarily wear facemasks or respirators, the employer does not have a duty to provide the masks but may choose to provide them or allow employees to provide their own. In this scenario, the employer must ensure that use of the facemask or respirator “will not in itself create a hazard,” and it must also adhere to other specific rules pertaining to voluntary respirator use.[12]
In addition to OSHA and other regulatory requirements, “[t]here are currently 22 State Plans covering both private sector and state and local government workers.”[13] These State Plans “are monitored by OSHA and must be at least as effective as OSHA in protecting workers and in preventing work-related injuries, illnesses and deaths.”[14] As a result, determining whether employees need to wear facemasks or other protective equipment to prevent the transmission of COVID-19 is a fact-specific inquiry and may depend on the state in which the workplace is located.
Regardless of whether an employer wants to require, allow or not allow employees to wear facemasks at work, navigating the applicable rules and regulations pertaining to the use of facemasks and other protective wear for employees is a complex endeavor. As a result, we highly recommended seeking legal advice prior to implementing any procedures to protect employees and others from COVID-19. For questions, please contact Christina Jepson by sending an email to cjepson@parsonsbehle.com or call 801-536-6820.
[1] https://www.cdc.gov/coronavirus/2019-ncov/prevent-getting-sick/cloth-face-cover.html (last visited April 14, 2020).
[2] Id.
[3] https://www.cdc.gov/coronavirus/2019-ncov/prevent-getting-sick/cloth-face-cover-faq.html (last visited April 14, 2020).
[4] See https://www.cdc.gov/coronavirus/2019-ncov/prevent-getting-sick/cloth-face-cover.html; https://www.osha.gov/Publications/OSHA3989.pdf (last visited April 14, 2020).
[5] Id.
[6] https://www.osha.gov/SLTC/covid-19/controlprevention.html (last visited April 14, 2020).
[7] Id.
[8] https://www.osha.gov/SLTC/covid-19/standards.html#temp_enforcement_guidance (last visited April 14, 2020).
[9] Id.
[10] https://www.osha.gov/SLTC/covid-19/controlprevention.html (last visited April 14, 2020).
[11] Id.
[12] 29 C.F.R. 1910.134(c)(2)(ii) (last visited April 14, 2020).
[13] https://www.osha.gov/stateplans/ (last visited April 14, 2020).
[14] Id.
