The Wisdom and Value of Establishing a Company Standard Face Mask

As employers prepare for their employees to return to work, they would be wise to establish and communicate a company face mask policy and adopt a company standard face mask requirement is they wish to remain, within the intent of, and in compliance with, any number of state and federal agencies.

Most employers will be required by some governmental agency to provide their employees with a face mask for use at work. Others won’t be required to furnish one but will encourage, or even require, their employees to wear a mask. Some will provide masks but allow their employees to wear it or not, or to wear their own mask if they prefer. Each scenario creates its own unique set of problems and generates its own risk and liability questions. Here are a few:

• Is it legal for a business to require its employees to wear a face mask?
• Should or must an employer require employees to wear a face mask?
• Who should pay for the face masks?
• Which employees should wear them and under what circumstance?
• What type of face mask should be used and what is its intended use?
• Should businesses have a standard mask or allow homemade ones?
• What legal liability could a business face if it allows employees to wear homemade, non-standard masks at work?
• Could liability arise for a business if it required mask usage at work and provided a low quality mask when a higher quality one was available?
• What if mask usage is required and an employee refuses to wear it?

Business owners should discuss these topics with their company lawyer, workers’ compensation advisor, risk manager and/or safety professional.

OSHA Face Mask Concerns and Challenges

A question that often comes up in this discussion is whether fabric face mask use by employees in the workplace constitutes a regulated act under OSHA?

OSHA’s General Duty Clause established the act’s purpose up front by stating that “employers shall furnish to each of his employees’ employment and a place of employment which are free from recognized hazards that are causing or are likely to cause death or serious physical harm to his employees”.

OSHA’s requirements, responsibilities and policies are established by statute, standards and regulation and its control measures may include a combination of engineering and administrative controls, safe work practices, and personal protective equipment (PPE). “Administrative controls” can be a workplace policy, procedure or practice intended to minimize the exposure of employees to risky conditions. They can include training, shift designs that lessen the threat of a hazard to an individual, hours of service standards for commercial vehicle operators, safety signage for hazards and measures to ensure the regular maintenance of equipment, etc.

OSHA’s guidance as it relates to COVID-19 clearly lists face masks as an example of what it considers to be PPE. However, it has made it fairly clear that fabric face masks, used for source control purposes to curb community spread, do not constitute PPE in the traditional sense (for protection against exposure to occupational hazards). As such, while other agencies may recommend masks, and some government entities may require them, OSHA’s PPE standards do not require employers to provide them (at this time).

Interestingly, some experts believe that the question of OSHA’s oversight over fabric face mask use may have to do with thecompany’s intention. They argue that the CDC’s recommendations with regard to the reasons for requiring a fabric face mask may be distinguishable from the reasons for more traditional PPE use based on whom the equipment is intended to protect. These experts argue that OSHA’s authority may depend upon whether the company intends to 1) protect the general workforce by requiring mask wearing as a source control measure to curb community spread; 2) protect non-infected workers with face masks that are intended to reduce the chance of becoming infected by inbound particles and inhibit dangerous bioburden build-up; or 3) protect both the general workforce and non-infected workers for the reasons above.

Further, they question whether requiring mask wearing for the purpose of source control and reducing community spread is not ipso facto a part of the employer’s overall strategy to create a safe workplace? Isn’t an intent to reduce community spread within the workplace not a part of an effort to ensure a safe work environment under OSHA’s General Duty Clause? They believe when a company requires its employees to wear a mask at work, regardless of the reason, it triggers certain OSHA requirements and duties.

The answers to this question is not clear cut as the situation is a dynamic one, especially when you consider possible federal action. Congress is debating another stimulus action and the two political parties are on opposite sides of the issues of employer responsibility and employer liability. The Democrat-controlled House of Representatives passed legislation whereby employees who must interact with the public, who have been quarantined, or who have tested positive for COVID-19 during the performance of their duties will be given a presumption that they contracted the virus at work. On the flip side, Senate Republicans are united in their demand that employers be shielded from responsibility for the healthcare workers and others working on the front lines of fighting COVID-19. Republicans want to insulate businesses with strong protections from “frivolous” COVID-19 lawsuits while Democrats are equally united in their concern that such protection would lead to employers not taking proper steps to safe-guard their workers. Moreover, many state legislatures, and governors by executive order, have made very substantial (Workers’ Compensation) changes and other employer requirements along the lines described above. In all cases, employee rights have been expanded and COVID-19 is presumed or deemed to be compensable by Worker’s Compensation or included under various state OSHA plans. These debates could have a direct impact on future federal OSHA positions and regulations. The courts will likely have the last word on this.

To be clear, if a face mask is intended to only meet CDC recommendations or other governmental requirements aimed at lessening community spread, this action may or may not be an administrative control. On the other hand, if the company’s intention re: requiring wearing a mask is as a means by which to ensure workplace safety, (at the very least) the company could possibly be expected to ensure that they are safe and that employees use them safely.

Many factors will influence a company’s decision to require the use of a face mask. OSHA’s guidance is for companies to consider the level of exposure of each workplace based on factors such as community spread, cases of COVID-19 in the workplace and the exposure level employees face. As it relates to ensuring a safe workplace in a COVID-19 world, it is necessary to determine the relative risk level of each employee’s specific situation. The exhibit below provides assistance in this regard and is based on OSHA guidelines used to determine the need to provide PPE. It may be used as the basis upon which to develop job risk assessments in the context of COVID-19.

The Need for a Company Face Mask Policy

A company that considers requiring the use of a fabric face mask to be a form of administrative control should provide general information on the mask’s safe usage. Companies must emphasize the inherent limitations of most fabric face masks and make it clear to employees that − unlike N95 respirators − these masks lack a sophisticated filtration system that prevents particles from entering the lungs (unless the face mask is otherwise designed and constructed with features that enable it to protect the wearer).

Likewise, if a company’s intention in requiring its employees to wear a mask is solely to reduce community spread, as opposed to requiring a face mask to be worn as a part of its OSHA hazard assessment, this needs to be very clearly communicated to avoid potential OSHA obligations. Companies that require employees to wear a mask need to carefully consider the obligations it might create for them to ensure that the mask is effective and provides the proper protection as a safe work practice. Expressing these intentions is just one of the many reasons why companies should have a written face mask policy.

Employers would be well served to launch their COVID-19 safety, risk management and liability mitigation efforts by establishing a comprehensive corporate face mask policy, initiating a face mask training program and engaging in a proactive communication initiative. A strong, comprehensive and effective company face mask policy should follow these guidelines:

• A presentation of the facts and logic behind the company’s face mask strategy. Most employees want to know and understand why the company is implementing a new policy and why they are being asked to comply with it. Explain the facts of COVID-19 and how mask wearing helps to curb the spread of the virus and make the workplace a safer environment.
• Describe the company’s face mask policy including why, when and where employees must wear face masks. This discussion should be as complete, specific and detailed as possible and include the logic and intention of the company’s policy and the consequences of not abiding by the policy.
• Explain why the company elected to have a company standard face mask; why it was selected; what its capabilities and limitations are; how they may be obtained; and that they are free and will be replaced as needed.
• Instructions for correct mask wearing, washing, maintenance, replacing, storage and disposal. The effectiveness of a mask has almost as much to do with its correct use as it does with the quality of the mask itself. Employees must be provided with instructions and training (in person or via video) on COVID-19 hazards, the company’s face mask and its correct use.
• Document the face mask training process in writing. This will serve to evidence its effectiveness.
• Obtain employee sign-off. Employers should ask employees to sign off as to their understanding of the company’s face mask policy; their commitment to abide by it; and their agreement to hold the company harmless for their failure to follow it or their improper face mask use or care.

Having a formal company face mask policy can only serve to help a company be certain that its intentions are known and understood by its employees.

The Importance of a Company Standard Face Mask

In addition to establishing a formal company mask policy, companies should consider requiring the exclusive use of a company standard face mask and prohibiting the use of employee masks, whether homemade or commercial.

As with any PPE, it is ultimately the company that will be held responsible to assure that the face mask worn is adequate, safely designed and constructed, safely used, properly maintained, clean, etc. Appreciating this, any face mask has the capability of creating a safety hazard and a challenge to employers. As such, establishing a company standard face mask, and requiring employees to use it exclusively, would create a level of uniformity that would make it easier to ensure greater reliability, consistency and dependability enterprise-wide.

Permitting the wearing of homemade or other commercial face masks would thwart that effort. By example, the wearing of bandannas, balaclavas, neck gaiters, handkerchiefs, scarves, shawl scarfs, matos, etc. are not designed to be face protection in the traditional sense would likely create undue safety hazards that companies would need to address. If a face mask other than a company standard is allowed, companies would have to assess, evaluate and approve each to ensure that they meet whatever minimum mask requirements it establishes. This will only add another step and degree of complexity to the process of ensuring ongoing face mask safety. In establishing a face mask standard, employers need to consider these safety challenges:

• Entanglement Hazards: Wearing certain masks may create a risk of getting caught or tangled in machinery, resulting in serious injury. This is similar to a company’s ability to prohibit wearing other items in the interest of ensuring safety (e.g., jewelry, hooded sweatshirts, very long hair).
• Vision Concerns: Wearing certain masks may obstruct the wearer’s vision or “fog-up” their glasses or safety glasses and adversely impact their ability to perform their work tasks safely. For this reason, the use of a company standard face mask is recommended. Further, employees should be advised of these risks and trained in the correct use of the face mask to achieve a proper fit, eliminate fogging and condensation buildup, etc. In those very few situations where wearing a face mask creates a hazard that may not be adequately mitigated, the face mask should not be worn.
• Bio-Burden/Transmission Vector Threats: Even when they are properly used, most ordinary face masks create “bio-burdens” or large populations of viable pathogenic microorganisms, as a result of the wearer breathing and coughing germs and viruses into them and the mask coming into contact with people who may carry and transmit infected germs and viruses. There are several means by which companies can mitigate these risks including the use of a face mask that employs a QAC-based chemical antimicrobial technology that continuously kills, rather than simply filters, dangerous microbes, thereby reducing the risk of bio-burden build-up and cross-contamination. An effective antimicrobial can reduce the need for such a tight mask fit and the wearer’s need to constantly readjust the face mask. It also reduces the risk of mask-to-hand-to-body transmission when removed; and, relative to ordinary masks, it is safer to transport and store (as it is not covered with active microbes). This is important as when the mask wearer touches, adjusts and discards a mask, each action potentially spreads disease and possibly infects the wearer, others in the vicinity and any touched surfaces. Regardless of the company standard face mask it chooses to adopt, companies are advised to train employees to safely put on, fit, wear, remove, clean, maintain, handle and store their face mask to reduce mask-to-hand-to-body transmission and to establish protocols for their proper and timely replacement.
• Breathing Impairment Risks: While common sense dictates that wearing any face mask necessarily impairs a wearer’s ability to breath relative to not wearing one, the benefits of mask use have been deemed to outweigh the nominal risk associated with wearing face masks that are correctly designed and constructed to support extended use. Homemade masks that are often tight and constructed of relatively impermeable materials, and commercially made masks that are not correctly designed or constructed, may limit an employee’s breathing, as well masks that become covered with saliva, mucous, face oils, makeup, dust and dirt that may accumulate over time. This can cause the wearer to rebreathe his/her carbon dioxide (CO2) or other infectious material; exacerbate breathing problems of those having underlying respiratory or cardiac health conditions; and, in extremely limited circumstances, cause severe headaches, hypercapnia or hypoxia. To address this risk, companies are advised to train employees on the correct fitting, wearing, cleaning and maintenance of their face mask and to establish protocols for their proper and timely replacement. To eliminate this risk, companies should not allow the wearing of homemade mask and require the exclusive use of a company standard face mask.
• Furthering a False Sense of Security: It is possible that some employees may presume that they cannot spread, or become infected by, COVID-19 as a result of face mask wearing by others or themselves. Regardless of what company standard mask is adopted, companies should train and clearly communicate to their employers that no fabric face mask is intended to be a substitute or replacement for medical-grade PPE; that face masks are an imperfect supplemental protection and are not intended to replace other recommended or required measures to stop community spread; and that face mask wearers should consult with their trusted medical professional to determine compatibility with their personal medical situation regarding face mask use in relation to their particular health issues.

It is noteworthy to mention that both state and federal OSHA claim filings have increased by orders of magnitude over the past few months, with most being related to PPE and respiratory conditions. Below is some data from its website (as reformatted in graph form by Safety Knights).

To download a specimen face mask policy and company standard employee communication piece, and for a more expanded discussion of this and other related topics, go here to pages 45-62 of The Definitive Employer Guide to Purchasing Face Masks for Their Valued Employees

Richard Nicholas, a forty-year veteran of the TPA industry, is the Founder of the TPA Network Research Consortium, an emerging industry-wide research initiative purpose-built to help health plan sponsors evaluate new medical technologies and health innovations.

Our research into COVID-19, its transmission and face mask efficay led us to create a unique new type of protective face mask intended and designed to provide a meaningful degree of wearer protection and inhibit dangerous bio-burden build-up. To learn about the Stay Safer PRN95+ Protective Face Mask and the Research Consortium, see www.ResearchConsortium.org, click here or email Richard@ResearchConsortium.org