As the coronavirus continues to affect businesses throughout the U.S., Occupational Safety and Health Administration (OSHA) regulations have become a hot topic amongst employers.
As temporary enforcements are issued from the Occupational Health and Safety Administration, it is important that employers understand which citations could be issued from these changes.
Changes to OSHA Respiratory Protection Program
One of the areas of temporary enforcement that Employers should be aware of are the changes to the Respiratory Protection Program under OSHA.
Employers should have an understanding of the requirements of masks and whether they are needed due to COVID-19 or because they are required under OSHA, especially since Gov. Tony Evers issued Emergency Order # 1 that requires face coverings in the state of Wisconsin starting Aug. 1, 2020, which came out of his Executive Order #82.
As Executive Order #82 recommends a statewide use of face covering requirement to limit the spread of COVID-19, it’s important to understand the difference between OSHA requirements and COVID-19 related guidance. Under 29 CFR § 1910.132, OSHA provides regulations for employers to follow concerning personal protective equipment (PPE) which includes masks, gloves, and any other equipment needed to prevent exposure to an employee.
If certain masks are used, such as respirators, then 29 CFR § 1910.134 applies, providing regulations for the respirator protection program that employers need to follow. Since respirators are personal protective equipment, both standards need to be read to comply with the standards properly, but what about face coverings? It is important for employers to understand the differences among masks used in the workplace.
Reduction of Risk of Workplace Exposure
OSHA provides COVID-19 guidance for employers to prepare their workplaces when opening. Employers were encouraged to implement new policies and procedures that covered infectious disease preparedness and response, basic infection prevention measures, and prompt identification and isolation of sick people to help protect their employees.1 Employers were also encouraged to develop, implement and communicate the workplace flexibilities and protections as well as workplace controls. This includes understanding safe workplace practices and assessing the needs for personal protective equipment.
Although some of OSHA’s guidance is encouraged, it is important to remember that going above and beyond the regulations is best practice. Employers need to be aware of the OSHA Act regulation referred to as the General Duty Clause Section 5(a)(1).2 This clause, which states that employers have a general duty to keep their employees safe from recognized hazards that could cause death or serious bodily harm, is treated as a “catch all” for any hazards that may not fall into a specific regulation. Employers not providing a safe and healthy workplace can be cited by OSHA under this general duty clause.
Personal Protective Equipment and Respiratory Protection Program
In its guidance on workplace controls, OSHA discusses the use of PPE. OSHA has been making coronavirus-related complaints a top priority for enforcement, and has noted that respirator protection programs, especially in the health care industry, are a significant concern.
Under 29 CFR § 1910.132, OSHA requires that employers provide employees with necessary personal protective equipment to prevent exposure to potential hazardous materials they may come into contact with while performing their job duties.3
Personal protective equipment required for COVID-19 protection should be assessed on the risk of infection to the employee while completing their job tasks. It is the responsibility of the employer to know what equipment is needed for employee’s job task, to provide that equipment, and to train the employee on how that equipment should be used. If an employee brings in their own personal protective equipment, then the employer must make sure it is adequate for the task that the employee is using it for.
Under 29 CFR § 1910.134, OSHA’s Respiratory Protection Program requires a written program, medical evaluation, fit testing, and training.4 Employers must follow these steps to make sure that their employees are properly informed and trained in using a respirator. However, with the different types of mask that are being used today, it is important to understand when the program applies and when it does not.
There are three different types of masks that OSHA has recognized in the Frequently Asked Questions page on their website.5 These masks are cloth face coverings, surgical masks, and respirators (filtering pieces).
Cloth face coverings, such as homemade masks, are not considered PPE, and cannot be used as or replace required PPE.6 This means that employers do not need to follow the regulations for personal protective equipment or the respirator protection program for cloth face coverings.
Surgical masks can be used for those who are sick to prevent the transmission of the infection, but are also used to prevent splashes and spray that could contain infectious materials.7 These masks are considered PPE under 29 CFR § 1910.132, and should be provided at no cost to the employee. However, it is important to note that if surgical masks are being used as “source control” (meaning they are placed on those that are sick and not to prevent splashing and spraying), then OSHA does not require the employer to provide them for workers.8 It would be best practice for an employer to do so, however, as it would mitigate risk of exposure of a potential hazard to their employees.
Respirators are used to prevent an individual from inhaling particles. Their use must follow the respiratory protection plan under 29 CFR § 1910.134. When using respirators, employers have more stringent guidelines to follow, and should refer to the regulation for specific information about the program. OSHA issued temporary enforcement guidance for the respiratory standard pertaining to health care workers.
Enforcement Guidance on Respiratory Protection Program
OSHA has issued enforcement memos pertaining to the respirator protection program since March providing guidance due to COVID-19.
On March 14, 2020, the enforcement memo regarding health care Respiratory Protection Annual Fit-Testing for N95 Filtering Facepieces during COVID-19 requires that health care personnel who provide direct care to patients with COVID-19 have appropriate respiratory protection.9
Due to the shortage of N95 respirators, health care providers could use respirators of equal or better protection, such as N99 or N100, respirators with filtering canisters, or powered air purifiers. The guidance went on to provide that fit-testing methods may be changed by health care works from quantitative to qualitative, which means the methods aren’t destructive to the respirator so it can be reused. This is important, as OSHA field officers will exercise discretion when inspecting.10
Under the enforcement guidance issued April 3, 2020, industries using these respirators now have extended use and reuse of respirators to prevent more shortage issues, as long as the structural and functional integrity of the mask is in good condition.11
Furthermore, masks past their expired shelf life can be used on the condition there are no unexpired N95 masks available and employers have made a good faith effort to find the masks or use alternative options.12 However, it is still important to have a Respiratory Protection Program in place that is updated based on the regulations and the employer’s practices.
What Should Employers Do
Make sure if respirators are required in the workplace there is a current written program, that it is being followed, and that training has been completed.
To help employers implement a Respiratory Protection Program, OSHA details guidelines on its instructions for Respiratory Protection Guidance CPL 02-02-054. This webpage details the requirements for an employer’s plan.
This article was originally published on the State Bar of Wisconsin’s Labor & Employment Law Section Blog. Visit the State Bar sections or the Labor & Employment Law Section web pages to learn more about the benefits of section membership.
Check Out WisLawNOW
State Bar of Wisconsin section blogs, as well as other Wisconsin legal blogs, are now being aggregated into one platform. Called WisLawNOW, this community brings together blog content written by State Bar of Wisconsin members under a single website.
More than 40 Wisconsin legal blogs have already joined WisLawNOW to expand their reach, showcase expertise, and contribute to this digital collection of legal information.
2 29 U.S.C. § 654 (1970).
3 29 CFR § 1910.132(a) (2016).
4 29 CFR § 1910.134 (2011).
11 Dept. of Labor, Enforcement Guidance for Respiratory Protection and the N95 Shortage Due to the Coronavirus Disease 2019 (COVID-19) Pandemic (April 3, 2020).