Originally published by Michael E. Brewer, Caroline B. Burnett and Robin Samuel.
As companies develop their reopening playbook, health & safety is of course the top line concern. Face coverings have emerged as one of the most popular preventative measures for mitigating the spread of the virus. For employers, questions abound about obligations related to face coverings.
We’ve been helping multinational companies navigate the use of face coverings in the workplace. Here are answers to some of the most common questions in the US:
- Does the CDC require the use of face coverings in the workplace?
No. At this point, there is no federal requirement that employees wear face coverings in the workplace. The CDC 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. See here.
The CDC also recommends using cloth face coverings, and not surgical masks or N-95 respirators, which are critical supplies that must continue to be reserved for healthcare workers and other medical first responders.
- Does OSHA require the use of face coverings in the workplace?
No, except in specific workplaces where there is a higher risk of airborne exposures. OSHA has not required employees to wear masks at work as a result of COVID-19, except in certain settings such as hospitals and other workplaces where Personal Protective Equipment was required before the pandemic.
- Do any local or state governments require the use of face coverings?
Yes. Numerous jurisdictions have encouraged—or mandated—citizens to wear face coverings when out in public or in the workplace, especially when social distancing cannot be maintained effectively. Some directives also obligate employers to provide masks to employees. As a result, there is a patchwork of state and local orders requiring employers to either allow or provide masks or face coverings for employees.
For instance, in New York, on April 13, the Governor issued an executive order requiring “all essential businesses or entities” to provide “any employees who are present in the workplace” with face coverings to wear “when in direct contact with customers or members of the public.” The order states that businesses, at their own expense, must provide employees with face coverings. And, on April 24, Michigan issued Executive Order 2020-59, requiring “all businesses and operations whose workers perform in person work must provide non-medical grade face coverings to their workers at a minimum” effective April 27, 2020. The Michigan order states, “Supplies of N95 masks and surgical masks should generally be reserved, for now, for health care professionals, first responders (e.g., police officers, fire fighters, paramedics), and other critical workers who interact with the public.”
On April 1, the California Department of Public Health offered guidance recommending face coverings. Thereafter, several cities and counties started mandating the use of face coverings. For example, the City of Los Angeles has issued a series of orders that mandate that workers who are authorized to work onsite wear face coverings, and that require employers to provide face coverings to their employees without charge.
In Illinois, effective May 1, essential retail store employers (including stores that sell groceries and medicine, hardware stores, and greenhouses, garden centers, and nurseries) must provide face coverings to all employees who cannot maintain a minimum six-foot social distance at all times.
Orders regarding the re-opening of non-essential work places will likely extend this obligation — to wear face coverings at work – to newly opened workplaces.
- Who pays for face coverings?
It depends. The responsibility to provide or pay for face coverings depends on the specific county, order and/or workplace. For example Los Angeles currently requires all employees and customers of essential businesses and transportation services to wear face coverings, and its orders for reopening businesses impose similar obligations on employers to provide non-medical grade face coverings to employees.
Other city or county orders require employees to wear face coverings, but do not specify who must pay for them. In such cases, the answer of who pays may turn on state law regarding expense reimbursement.
- During a pandemic, may an employer require its employees to wear personal protective equipment (e.g., face masks, gloves, or gowns) designed to reduce the transmission of pandemic infection?
Yes. According to the EEOC, an employer may require employees to wear personal protective equipment during a pandemic. However, where an employee with a disability needs a related reasonable accommodation under the ADA (e.g., non-latex gloves, or gowns designed for individuals who use wheelchairs), the employer should provide these, absent undue hardship.
There is a significant difference between voluntary use of face masks by employees and requiring employees to wear them. Employers can require employees to wear face masks in the workplace, but many face masks, including N95 respirators are subject to the OSHA PPE Standard and the OSHA Respiratory Protection Standard. Under the OSHA PPE Standard, which applies to all PPE (including surgical masks), before an employer can require an employee to put on PPE, the employer must, among other things, perform a hazard assessment, consider other alternative options to protect employees (e.g., plexiglass barriers), identify and provide appropriate PPE for employees, train employees in the use and care of PPE, clean and maintain PPE, including replacing worn or damaged PPE, and prepare a plan that is periodically reviewed, among other steps, including employee specific requirements. The employer pays all costs for the PPE as well.
It is worth noting, however, that if an employer requires its employees to wear cloth face coverings in the workplace, an employee may have an argument that the cloth face coverings are PPE. As such, it would be prudent to treat the face coverings as if they are PPE and conduct the necessary PPE analysis and training. Therefore, an employer may be liable to pay for face coverings as employers generally cannot require employees to provide for their own PPE. However, if employers merely permit face coverings to be worn in the workplace voluntarily, they are not subject to the PPE standard and the employee must provide for his/her own face covering.
- If local orders require wearing face coverings in public, can it still be considered “voluntary” in the workplace and not subject to the OSHA PPE standard?
In short, yes. We recommend following local orders, as each order is different.
Moreover, OSHA does not require employees to wear masks at work, except in certain settings such as hospitals. Thus, cloth face coverings required by local health orders should not be subject to OSHA’s PPE standard. If employers merely permit face coverings to be worn in the workplace voluntarily, they are not subject to the PPE standard, and the employee must provide for his/her own face covering.
If an employer is following a local health order requirement for cloth face coverings, OSHA is not implicated by simply following the health order. However, if the job specifically requires PPE or an employer requires the use of masks or respirators, OSHA regulations would come into play.
For more, contact your Baker McKenzie employment attorney.
Curated by Texas Bar Today. Follow us on Twitter @texasbartoday.
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