COURTS & CAPITOLS
Wearing Face Masks Should it be mandatory or voluntary? by: Robert C. Goldberg, general counsel for the Business Technology Association
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lthough most dealerships are considered “essential businesses,” we are now in the process of bringing employees back to business locations. Employers want to do so properly and employees seek assurances that their work environments are safe. Of course, social distancing must be observed and frequent hand-washing encouraged. But questions arise regarding personal protective equipment (PPE) and whether it should be required or used voluntarily by employees. The Occupational Safety and Health Administration (OSHA) has published detailed standards and guidance relating to employees wearing PPE, which includes face masks. The guidance outlines a significant difference between an employer that mandates that employees wear face masks and whether employees do so voluntarily. There is a further distinction as to whether employees are going to wear respirators, or simple cloth or surgical masks. A respirator is a device that protects the wearer from inhaling particles or other dangerous substances. Usually, it is fitted closely to the user’s face and does not allow air to flow between the sides of the mask and the user’s face. The whole idea is that the air should flow only through the mask and, thus, it filters the air. N95 masks are considered respirators. Respirators are subject to the OSHA Respiratory Protection Standards, which require respirators when “necessary to protect the health” of employees. Loose-fitting masks — such as surgical masks or the masks that individuals are making at home in response to COVID-19 — are not considered respirators because they do not filter air. Loose-fitting masks are, however, still subject to the OSHA PPE Standards, which require proper protection if it is necessary to prevent a job-related injury or impairment. There are significant differences between requiring employees to wear masks and permitting them to wear masks (even if the employer provides masks to its employees). Under the OSHA PPE Standards — which apply to all PPE, including loose-fitting cloth face masks — if an employer requires employees to wear PPE, the employer must perform a hazard assessment; consider other alternative options to protect employees (such as installing barriers between workers, or between workers and customers); identify and provide appropriate PPE for employees; train employees in the use and care of PPE; clean and replace PPE as needed; and create a plan that is periodically reviewed.
However, if the employer allows employees to voluntarily wear loose-fitting masks, none of these rules apply. Even if the employer pays for masks and provides them to employees, wearing them can still be voluntary. The employer should tell its employees, preferably in writing, that the wearing of masks is not required, but voluntary. If the masks are considered respirators and the employer requires employees to wear masks, the obligations under the OSHA rules are much more detailed and stringent, including that the employer must provide medical exams, make sure that the masks fit properly and provide training to employees. Though interim OSHA guidance encourages some degree of flexibility in the enforcement of respirator fit-testing and use during the current pandemic, if the employer permits employees to voluntarily wear respirators, it must comply only with the voluntary use requirements under the OSHA Respiratory Protection Standard. Providing employees with necessary PPE is essential in curtailing COVID-19. It is important to provide employees and visitors with safe working environments. Allowing employees to voluntarily wear masks you provide is a step in that direction. n Robert C. Goldberg is general counsel for the Business Technology Association. He can be reached at robert.goldberg@sfnr.com. www.offi cetechnol ogymag.com | M a y 2020