Employers are facing issues relating to shortages of respirators and non-surgical face coverings. The ever-evolving local, state, and federal regulatory landscape, coupled with these shortages, has sent employers scrambling, and these issues are particularly heightened due to public misconception about the differences between respiratory protection for employees exposed to hazards such as the coronavirus (COVID-19) versus nonmedical face coverings for use by the general public. Employers must carefully track these developments in all jurisdictions where they operate.
After previously recommending against the use of face coverings, the Centers for Disease Control and Prevention (CDC) reversed course on April 3, 2020 and issued guidance recommending that individuals wear cloth face coverings in public settings where other social distance measures are difficult to maintain, such as grocery stores and pharmacies, especially in areas of significant community-based transmission. The cloth face covering is meant to help slow the spread of COVID-19 by preventing asymptomatic individuals from transmitting COVID-19 while in community settings, in conjunction with CDC’s other recommended practices, including social distancing and frequent hand washing. The CDC also published a fact sheet, Use of Cloth Face Coverings to Help Slow the Spread of COVID-19, as well as a YouTube video, How to Make Your Own Face Covering, to help the public implement the new recommendations.
CDC’s guidance makes explicitly clear that face coverings for use by the public should be made of cloth and should not be surgical masks or N-95 respirators. Surgical masks are designed to provide barrier protection against respiratory droplets from the user, while respirators are specifically designed for healthcare professionals in close proximity to infected people. Both are “critical supplies” that should “be reserved for healthcare workers and other medical first responders, as recommended by current CDC guidance.” CDC thus recommends the use of cotton fabric, a tee shirt, or a bandana for members of the public to make their own masks in accordance with its guidance.
CDC’s shift in guidance has led to a flurry of nonbinding recommendations and binding orders by municipalities, counties, and states. These include:
The question facing employers is whether, and in what circumstances, an employer must either provide a face covering to its essential employees or require that essential employees bring their own face coverings from home. And, as noted above, the answer may depend on where the employer is located.
The following jurisdictions now specifically require some or all essential employers to supply face coverings to their employees:
Other jurisdictions encourage, but fall short of requiring, employers to supply their employees with face coverings, including North Carolina; Hollywood, Florida; Sedgwick County, Kansas; and Norman, Oklahoma.
The Occupational Safety and Health Administration (OSHA) has not yet issued guidance on CDC’s recommendations relating to the use of nonmedical face coverings, but may do so.
In light of the CDC’s guidance, and the potential for explicit mandates across additional jurisdictions, essential employers should start to plan for how they would ensure employee face coverings are worn where six-foot social distancing is difficult to maintain. This is particularly important for employers in sectors identified by the CDC and in local orders, including retail stores, grocery stores, and pharmacies. Employers should strongly consider documenting all reasonable efforts made to secure and provide nonmedical face coverings. If employers are unable to procure face coverings, they should consider asking employees to wear their own, referring to CDC’s guidance including appropriate sanitation procedures. At the same time, employers should develop a plan to ensure adequate training on the proper type of face coverings, how and when to use them, and how to maintain them. For help, employers can turn to the CDC’s fact sheet, Use of Cloth Face Coverings to Help Slow the Spread of COVID-19, and video, How to Make Your Own Face Covering. Finally, employers should continue to check for new state and local orders, as these are rolled out in mass across the country.
In contrast to masks intended to help slow the spread of COVID-19, respirators provide protection to the employee wearing the respirator from any chemical, hazardous substance or, infectious disease.
29 CFR § 1910.134 requires employers to provide respirators that are applicable and suitable for the purposes intended whenever such equipment is necessary to protect the health of an employee. Under this standard, employers must establish and maintain a respiratory protection program. OSHA recently released guidance to address supply shortages of N95 filtering facepiece respirators (FFRs) because of the COVID-19 pandemic, and these guidance documents will remain in effect for the duration of the outbreak.
OSHA’s March 14, 2020 memorandum, which then focused on the healthcare industry but now applies to all employers, addresses the required annual fit-testing of the Respiratory Protection Standard. OSHA notes that appropriate respiratory protection is required for all healthcare personnel (HCP) providing direct care to COVID-19 patients, incorporating the CDC’s hospital checklist for HCPs. OSHA recommends HCP employers follow existing CDC guidelines including conserving supplies of N95 FFRs. If there is a shortage of N95s, OSHA notes that one alternative is to provide the HCP with another respirator of equal or higher protection, such as N99 or N100 FFRs. In addition, healthcare employers may change the method of fit testing from a destructive method (i.e., quantitative) to a nondestructive method (i.e., qualitative) to preserve additional respirators. OSHA also incorporates CDC’s strategies for optimizing the supply of FFRs. Finally, OSHA concludes that enforcement discretion should be used so long as employers
On April 8, 2020 OSHA expanded its initial memorandum by noting that the March 14 guidance, which exclusively applied to the healthcare industry, now “applies to all workplaces covered by OSHA where there is required use of respirators.” Given the shortage of fit-testing kits and test solutions, OSHA encouraged employers to take necessary steps to prioritize the use of fit-testing equipment to protect employees who must use respirators for high-hazard procedures. OSHA specifically noted that field offices should exercise “additional enforcement discretion” regarding compliance with 29 CFR § 1910.134(f) when an employer switches to an equivalent- fitting make/model/size/style N95 or other FFR without first performing an initial quantitative or qualitative fit test. OSHA recognizes that these masks should be saved for use, not tests.
Additionally, in an April 3, 2020 memorandum OSHA provides guidance on enforcing the respirator standard for all workers. OSHA highlighted that, according to federal agencies such as the US Food and Drug Administration (FDA), N95 FFRs beyond their shelf life provide greater protection than surgical masks or non-NIOSH-approved masks. OSHA instructs employers to continue to manage their Respiratory Protection Programs and account for shortages of N95 FFRs, including an assessment of changes that can be made to decrease the need for N95 FFRs in the first place. If respiratory protection must be used, employers may consider alternative classes of respirators that provide equal or greater protection, so long as they are NIOSH-approved. If alternatives are not available, extended use or reuse of N95 FFRs, or use beyond their shelf life, is permitted so long as certain procedures are followed.
For HCP only, expired N95 FFRs must not be used when performing surgical procedures or procedures where respiratory secretions are likely on a COVID-19 patient. For HCP, OSHA advises that in accordance with CDC guidance, employers should prioritize the use of N95 FFRs by activity type. The activity should dictate the use of N95 FFRs within their shelf life or beyond their shelf life. OSHA concludes that enforcement discretion should be used in cases where
OSHA incorporated these temporary enforcement directives into its April 13, 2020 interim enforcement response plan addressing all issues related to COVID-19. Read our LawFlash, “OSHA Guidance Marks Dramatic Shift in Enforcement Focus Amid COVID-19.”
While OSHA will continue to monitor compliance with its respiratory protection standards, OSHA’s approach, consistent with the CDC, provides enforcement discretion and allows more flexibility on the use of respirators including flexibility on fit testing, extended use, reuse and use beyond shelf life for respirators. Employers in settings requiring the use of respirators must carefully monitor their supplies and develop policies to address contingency scenarios for times when supplies are low. Employers should also consider developing talking points that communicate any policy changes to their employees in clear and concise fashion, with reference to the applicable OSHA and CDC guidance, including communications with respect to current supply levels.
For our clients, we have formed a multidisciplinary Coronavirus COVID-19 Task Force to help guide you through the broad scope of legal issues brought on by this public health challenge. We also have launched a resource page to help keep you on top of developments as they unfold. If you would like to receive a daily digest of all new updates to the page, please subscribe now to receive our COVID-19 alerts.
If you have any questions or would like more information on the issues discussed in this LawFlash, please contact any of the following Morgan Lewis lawyers:
Washington, DC
Jonathan L. Snare
Michele L. Buenafe
Alana F. Genderson
Dennis C. Gucciardo
Los Angeles
Jason S. Mills
Philadelphia
John P. Lavelle, Jr.