We all know that the wearing of masks is an essential element in helping to prevent the spread of COVID-19. As with many safety precautions, however, the specifics of what is required continues to evolve relative to masks, and employers need to keep up with the evolving legal requirements as well as public health and other guidance.
Last month, OSHA updated its guidance on COVID-19. More specifically, the updated guidance provides:
Face coverings are simple barriers to help prevent your respiratory droplets or aerosols from reaching others. Not all face coverings are the same; the CDC recommends that face coverings be made of at least two layers of a tightly woven breathable fabric, such as cotton, and should not have exhalation valves or vents.
Even though the guidance is just that, OSHA may find the failure to comply with it violates OSHA’s general duty clause. Even more important, complying with the guidance may help save lives (and your business).
Employers are well-advised to consider revising their policies, education and management monitoring relative to masks to reflect the new OSHA Guidance. Spell out what is required (2-ply, at a minimum) and what is not acceptable (exhalation valves or vents.)
This month, the CDC issued guidance with regard to double masking. The CDC guidance calls out the potential benefits of double masking as well as the circumstances where double masking may be counterproductive, such as wearing two disposal masks (instead of a cloth mask over a disposable mask).
Neither the CDC nor OSHA has officially mandated or recommended double masking, at least not yet. Whether and how an employer mandates or recommends double masking goes beyond the scope of this blog but it is important to note it is not a decision to make without careful consideration of a continuum of options balancing the pros and cons of each option in light of practical realities.
However, as always, employer must consider state and local laws, too. Last week, New York City Department of Health recommended double masking. More specifically, the updated guidance provides, in part:
Use a face covering with two or three layers of material to better prevent unfiltered air from passing through. A cloth face covering over a disposable mask, is also recommended. However, people should not use two disposable masks. Wearing two of these masks does not help improve fit.
New York City businesses need to weigh the guidance from the New York City Department of Health. As with OSHA guidance, the failure to comply with the New York City guidance may be the basis for a claim (or worse).
It is anticipated that OSHA will issue an emergency standard(s) on COVID-19 next month. More guidance on masks may be part of the anticipated standard(s).
Stay tuned and be safe.
Author’s note: Not Legal Advice
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