Both federal and state OSHA regulators have been regularly citing employers for failure to comply with their respective respiratory protection standards in connection with COVID-19 inspections and these citations have not been restricted to the healthcare industry. OSHA’s Respiratory Protection standard, at 29 CFR 1910.134, requires employers to provide appropriate respiratory protection, such as N95 respirators, when necessary to protect employees from a known hazard in the workplace. Use of a respirator, in turn, requires “proper training, fit testing, availability of appropriate medical evaluations and monitoring, cleaning, and oversight by a knowledgeable staff member.”

Most healthcare industry employers who provide direct patient care are likely aware of the state and federal requirements for respiratory protection for their employees, including the significant obligations for a full-blown respiratory program, medical evaluation, training, fit testing, and clean-shaven employees. Will state and or federal OSHA inspectors cite your establishment for COVID-19 exposure of your employees under these respiratory protection standards, even if you are not a healthcare provider such as a hospital, nursing home, or physician’s office? If those agencies conclude that your establishment takes other measures, short of a respirator program, such as engineering controls or administrative controls, are insufficient to protect your employees from the virus, the answer is yes. For example, federal OSHA has recently cited a warehouse/freight forwarding industry employer in Columbus, Ohio, and one of the largest foodservice distributors in the United States based in Danville, Illinois, for respiratory protection violations standard in connection with exposure to the COVID-19 virus.

Reportedly, an unusually large percentage of the citations issued to employers by OSHA regarding COVID-19 alleging violations of the Respiratory Protection Standard is being contested by those employers. This is likely because many of those employers intend to require OSHA to prove both that their employees were exposed to COVID-19 at work and that the safety protocols they had in place at the time. The mandatory wearing of surgical and cloth masks, distance separation, physical barriers were sufficient to protect their employees from the virus. It will be interesting to see how OSHA’s citations fare before the Occupational Safety and Health Review Commission judges assigned to hear those cases.

Cloth or Surgical Masks vs. N95 Respirators

The N95 mask is considered a “respirator” under OSHA’s respiratory protection standard. Even the voluntary use of such a respirator by an employee triggers an employer’s obligations under the respiratory protection standard. (Employees wearing an N95 respirator under voluntary use are required to receive OSHA’s Appendix D to the standard and are supposed to adhere to the instructions in that Appendix concerning the use, storage, and maintenance of the respirator).

When the pandemic was still in its early stage in March 2020, the CDC took the position that only the N95 filtering facepiece mask was sufficient to protect oneself and others from transmitting the virus. The CDC was instructing everyone on television at that time not to wear a mask because it would cause you to touch your face repeatedly. Of course, not much long after that statement, the CDC and other federal officials were encouraging everyone to wear any face covering to “stop the spread.” Neither the CDC nor OSHA has ever recognized a regular or surgical mask as adequate respiratory protection from the COVID-19 virus. Cloth face coverings and surgical masks are not considered personal protective equipment (PPE) by OSHA and OSHA still maintain that they are not intended to protect against exposure to occupational hazards. However, in recent guidance published on January 29, 2021, OSHA acknowledged that “face coverings can reduce wearers’ risk of infection in certain circumstances.”

The guidance from federal OSHA, published last March and April, directed its Compliance Safety and Health Officers to “exercise enforcement discretion” about fit testing requirements of the respiratory standard regarding N95 respirators. This was due to the shortage of those respirators at that time. However, a CDC official recently announced a revision to its guidelines, which previously stated that the protective N95 respirators must be reserved for healthcare workers. The CDC states that N95s are still “prioritized” for those workers. They are now permitting “bulk sales” to other employers who employ individuals who must work closely together with others, such as bus drivers, food processing employees, and other manufacturing or retail establishments with crowded conditions. One likely reason for this recent change by the CDC is the reported glut of unsold N95 masks by various US manufacturers.

Employers whose employees are required to work close to other individuals that must wear face coverings or masks over the nose and mouth may want to re-examine now if OSHA will contend that those employees should be using an N95 respirator to protect them and their co-workers from respiratory hazards at work. Although requiring such respirators involves significant obligations for employers and establishing a respiratory protection program, it may be the only way to avoid a citation if OSHA visits such an employer’s facility.