Eight months into the coronavirus (“COVID-19”) pandemic and employers in both healthcare and non-healthcare settings are grappling with requirements for employees’ use of personal protective equipment (“PPE”) and respiratory protection. Rather than clarify the requirements, continually evolving guidance from the Centers for Disease Control and Prevention (“CDC”), Occupational Health and Safety Administration (“OSHA”), state safety agencies, and state and local health departments only confound the issues by either overstating the requirements in an effort to simplify them or being overly detailed and appearing to conflict with other agency guidance. In some cases, employers’ good-faith efforts to satisfy the requirements are also hampered by limitations in PPE supplies, resources, time, or competing COVID-19 priorities, creating impossible situations and often a balancing of regulatory risks and potential liabilities.

Since March, CDC and federal OSHA guidance have instructed employers to conduct a hazard assessment to determine employees’ risk of workplace exposure to COVID-19 and take appropriate responsive controls. In effect, this guidance encourages all employers to consider COVID-19 a recognized hazard and implement basic infectious disease control and prevention measures, as well as social distancing, good hygiene practices, and enhanced cleaning and disinfection protocols. Higher risk industries, or those industries where employees must or are likely to have close contact (fewer than 6 feet of physical distance) with individuals known or suspected of having COVID-19, were also directed to use appropriate PPE, such as gloves, gowns, safety glasses, masks, and, in some cases, respiratory protection, such as NIOSH approved filtering facepiece respirators like the N95. But determining when exactly a respirator is needed continues to be a moving compliance target. OSHA’s most recent guidance on N95s and N95 use, published in the form of an answer to a frequently asked question (“FAQ Guidance”), also does little to direct employers by stating simply that N95s provide effective personal protection against COVID-19 and that employers are responsible for ensuring employees are protected enough against potential workplace exposures to COVID-19. OSHA’s FAQ Guidance further takes the impractical position of directing employers to cease or delay operations “whenever a [COVID-19] hazard presents an imminent danger,” N95s are unavailable, and other controls do not eliminate the COVID-19 exposure risk. This guidance, in application to healthcare settings, is partially inconsistent with CDC guidance on Optimization Strategies for PPE Supplies, which allows for use of alternative PPE in some cases and does not require full elimination of a COVID-19 exposure risk.

CDC, in fact, has consistently conveyed in guidance that in a healthcare setting, employees should use Standard Precautions, Contact Precautions, and Airborne Precautions and eye protection when caring for patients with confirmed or possible COVID-19. Through its guidance, CDC has directed healthcare employees to implement universal use of PPE and wear, at a minimum, a surgical mask, gloves, eye protection (i.e., safety glasses or face shield), and gown whenever interacting with an individual who is known or suspected of having COVID-19. At the same time, and to the extent feasible, some form of source control, such as a physical barrier or patient’s use of a cloth face covering or mask, should also be used to minimize the risk further of transmitting disease. Respiratory protection, in contrast, is reserved for higher risk procedures, or aerosol generating procedures and surgical procedures that pose a higher risk of transmission if the patient is COVID-19. CDC guidance does not, however, direct healthcare employees to wear respiratory protection simply because there is a potential exposure to COVID-19 in the workplace or risk of exposure to COVID-19 cannot be eliminated.

There are many reasons for limiting the required use of respiratory protection to protect against COVID-19 to use during aerosol generating procedures and certain surgical procedures. To begin with, respiratory protection equipment is simply not available in quantities that could meet the healthcare industry’s demand for universal use. Use of respiratory protection equipment can also put a physical strain on the individual wearing the equipment and cause worker discomfort. Requiring employees to wear respiratory protection also creates a substantial compliance obligation under federal and state occupational health and safety laws. This compliance obligation, which involves, among other things, having a written program, medical surveillance, and fit-testing is even more difficult for employers to comply with in normal times, and nearly impossible to comply with amid the COVID-19 pandemic. In fact, because of supply demands, employers who need respirators are facing many supply shortages. To overcome a supply shortage, employers must often supply employees with respirators that are from a different supplier or manufacturer, creating fit-testing compliance challenges. Supply shortages have also made required fit-testing impossible because of the unavailability of fit-testing kits and equipment. Similarly, because of the spread and incidents of COVID-19 in certain areas, healthcare employees, who but for COVID-19 would never need to wear a respirator, may not be able to undergo medical evaluations before needing to wear a respirator to protect against a COVID-19 exposure in the workplace.

Despite guidance from CDC and OSHA acknowledging issues in PPE and respiratory protection supply shortages, as well as obstacles from COVID-19 circumstances, federal OSHA and state equivalent agencies are aggressively pursuing enforcement of PPE and respiratory protection program violations. A cursory look at OSHA’s COVID-19 enforcement data shows the agency is actively citing hospitals, health care centers, rehabilitation centers, and long-term care and skilled nursing facilities for violating the Respiratory Protection Standard in connection with requirements for written programs, annual fit-testing, and medical evaluations.

Therefore, even if employers are not on the frontline for managing COVID-19, CDC and federal OSHA’s guidance make clear that employers need to conduct a hazard assessment to determine risks of exposure to COVID-19 in the workplace and ensure employees are wearing appropriate PPE and respiratory protection. While employers in healthcare settings need not require universal use of respiratory protection to achieve compliance with CDC infection control and preventive requirements, they will want to ensure their hazard assessment details the rationale behind their selection of PPE for each task or procedure. Employers that are requiring or allowing employees to wear filtering facepiece respirators, such as the N95, should also ensure they comply with applicable federal and state requirements by having a written program and procedures, conducting required medical evaluations and fit-testing, and ensuring employees are fully trained and that this training is documented. Moreover, employers that are unable to achieve full compliance with OSHA’s PPE and Respiratory Protection Standards for whatever reason should maintain detailed records for why full compliance could not be achieved, interim control efforts, and steps taken to come into compliance to preserve a defense against an OSHA citation or enforcement action.