David I. Rosen, Jordan E. Pace
Employment and Labor
July 10, 2020
On July 2, 2020, the Occupational
Safety and Health Administration (“OSHA”) published a series of frequently
asked questions and answers providing guidance on how OSHA’s standards apply in
the context of COVID-19. Notably, while
OSHA endorses guidance from the Centers for Disease Control and Prevention (“CDC”)
recommending that employees wear “cloth face coverings,” OSHA’s guidance
reminds employers that they must be cognizant of the limitations of cloth face
coverings and the risks they may present.
Previous OSHA Guidance
Federal law requires employers to
provide their employees with a workplace “free from recognized hazards likely
to cause death or serious physical harm.”
This general duty, which OSHA enforces, applies as much to protecting
employees from COVID-19 as to any other recognized hazard employees may
encounter in the workplace. While the
CDC, the Equal Employment
Opportunity Commission (“EEOC”), and state/local agencies have been
quick to issue and update specific guidance on dealing with COVID-19 in general
and in the workplace specifically, OSHA has been relatively late to the
party. Much of the guidance from OSHA to
date has been focused on reporting requirements and industry-specific guidance,
though OSHA has released high-level guidance on preparing the workplace
and on returning to
work.
OSHA’s Guidance on Face Coverings
In the new FAQs, OSHA
recommends that employers “encourage” employees to wear face coverings but does
not require employers to provide masks or other face coverings to protect
employees from COVID-19. OSHA draws a
distinction between (i) “cloth face coverings,” including both
manufactured and homemade products, such as bandanas, scarves, and items made
from other fabric; (ii) medical grade surgical masks; and
(iii) respirators meeting technical standards. In some instances, items appearing to be or
sold as surgical masks or respirators may not be cleared by the relevant agency
and may not meet required minimum standards.
With respect to cloth face
coverings, the OSHA guidance reminds employers that, in certain circumstances,
wearing such face coverings “presents or exacerbates a hazard.” Cloth face coverings are not considered
personal protective equipment (“PPE”) and may not be provided by employers or
used by employees in situations where applicable safety standards mandate the
use of PPE meeting certain technical standards (such as respirators). For example, a worker who is exposed to
particulates or dust in the course of his or her duties may not use a bandana
or scarf in place of a respirator. Even
where respirators are unavailable due to COVID-19-related supply/demand issues,
cloth face coverings and surgical masks may not be used in place of required
equipment.
The OSHA guidance also notes that
cloth face coverings present the additional risks of becoming contaminated with
chemicals, accumulating infectious materials, and exacerbating heat illness,
among others. Moreover, cloth face
coverings are not a substitute for social distancing. Cloth face coverings should be washed in
accordance with CDC guidance.
Takeaways for Employers
In the rush to address and stop the
spread of COVID-19, employers cannot ignore other workplace hazards or
applicable safety standards. This is
consistent with guidance from other agencies like the EEOC, which has reminded employers that
measures intended to prevent COVID-19 cannot ignore anti-discrimination
protections designed to protect employees from unlawful treatment on the basis of
disability, age, ethnicity, or any other protected characteristic.
Like many of the FAQs and informal
guidance published by governmental agencies over the past few months, OSHA’s
guidance does not have the force of law, as its recommendations are neither
mandatory nor a “get-out-of-jail-free” card for employers who adhere to
them. Nonetheless, adherence to the
guidance is recommended, as employees who contract COVID-19 in the workplace may rely on the FAQs
to substantiate legal claims against their employers.
We are available to provide
guidance on compliance with workplace safety laws and other employment laws, in
the context of COVID-19 and generally.
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