June 18, 2020Client Alert

OSHA FAQs Generally Add to the Confusion but Clarify a Few Key Issues – For Now

Following its recent issuance of COVID-19 guidance for the construction industry, the Occupational Safety and Health Administration (OSHA) has issued a series of frequently asked questions and answers (FAQs) about wearing masks in the workplace.

OSHA purportedly issued this guidance to help employers navigate return-to-work issues amidst the continued pandemic. However, instead of offering clarity, the guidance generally adds to the confusion about worker safety in our current environment. More frustrating is OSHA’s characterization of the FAQs as advisory guidance while simultaneously reminding employers of their general duty to provide a hazard-free work environment pursuant to Section 5 of the Occupational Safety and Health Act of 1970.

The June 10, 2020 FAQs discuss cloth face coverings, surgical masks, respirators, and worker respiratory protections in the construction industry. Although much of the guidance muddies the return-to-work landscape, employers should note a few key takeaways:

  • Cloth Face Coverings: Cloth face coverings (1) are not considered personal protective equipment (PPE) and should not be used as a substitute for PPE; (2) are not a substitute for social distancing measures; and (3) should be washed in accordance with guidance from the Centers for Disease Control and Prevention (CDC).
  • Face Shields: According to OSHA, “[w]here cloth face coverings are not appropriate in the work environment or during certain job tasks (e.g., because they could become contaminated or exacerbate heat illness), employers can provide PPE, such as face shields and/or surgical masks, instead of encouraging workers to wear cloth face coverings . . . surgical masks and face shields can help contain the wearer's potentially infectious respiratory droplets and can help limit spread of COVID-19 to others.”

    When read in conjunction with the CDC’s recent Agricultural Employer Checklist for Creating a COVID-19 Assessment and Control Plan, OSHA’s June 10, 2020 FAQs suggest that employers may provide workers with face shields under certain circumstances such as when face coverings may be creating breathing, claustrophobia, or heat stress problems.
  • Surgical Masks: Surgical masks should be (1) placed on sick individuals to prevent the transmission of respiratory infections that spread by large droplets; and (2) properly disposed of after use.
  • Respirators: If employers provide respirators (including N95 masks), the respirators must be provided and used in accordance with OSHA’s Respirator Protection standard. If employers permit face coverings and an employee voluntarily wears an N95 mask or other filtering facepiece respirator (FFR), the employer must provide that employee with the information contained in Appendix D of OSHA’s Respirator Protection standard.
  • Construction Industry Respiratory Considerations: Cloth face coverings and surgical masks do not constitute acceptable respirator protection in the construction industry when respirators are not available because of the COVID-19 pandemic. The permissible exposure limits of all substance-specific standards, such as asbestos and silica, remain in place.

Michael Best’s Workplace Safety & Health team is here to help you navigate return-to-work issues during the COVID-19 pandemic, and we will continue to provide updates on OSHA guidance. Please contact your Michael Best attorney with any questions.

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