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OSHA COVID-19 Guidance: Workplace Facemasks Recommended

On July 9, 2020, the U.S. Department of Labor‘s Occupational Safety and Health Administration (OSHA) published new guidance to assist employers in creating safe workplaces. In the guidance, OSHA addresses frequently asked questions to common COVID-19-related workplace safety inquiries, including whether employees should wear facemasks while at work: 

Employer-provided facemasks not mandated. 

OSHA clarified that facemasks are not considered personal protective equipment (PPE) and are not intended to be substitutes for PPE for protection against exposure to occupational hazards. Consequently, facemasks do not fall under OSHA's PPE standards and employers are not required to provide facemasks to employees. 

Workplace facemasks recommended. 

OSHA recommends employers encourage employees to wear facemasks at work to reduce the risk of spreading COVID-19. Where facemasks are not appropriate in the workplace (e.g., because they could become contaminated due to chemicals or infectious material in the work environment), employers may provide PPE, such as face shields and/or surgical masks. Employers also should consider providing masks with clear windows to facilitate interaction between employees and individuals who need to lip-read to communicate. 

Facemasks to be cleaned or discarded. 

OSHA suggests following the guidance published by the U.S. Centers for Disease Control and Prevention for cleaning and discarding facemasks. 

Social distancing still required. 

OSHA reiterates that facemasks are not a substitute for social distancing measures, i.e., controls intended to minimize areas of close contact between employees. 

While OSHA has not mandated the wearing of facemasks in the workplace, the practice is highly recommended. Employees should wear facemasks at work if appropriate to their work environment and job tasks to minimize the risk of future claims of workplace COVID-19 exposure. There may be state and local legislative developments that could impact the guidance provided by OSHA, including state directives requiring individuals to wear facemasks in public. 

These states currently operate under facemask mandates:

 Connecticut

 Maryland

    Ohio

 Delaware

 Massachusetts

    Oregon

 Hawaii

 Michigan

    Pennsylvania

 Illinois

 Nevada

    Rhode Island

 Kansas

 New Jersey

    Texas

 Kentucky

 New Mexico

    Virginia

 Louisiana

 New York

    Washington

 Maine

 North Carolina

    West Virginia

Beyond these states, there are other jurisdictions such as California where municipal governments or local departments of public health dictate the extent to which facemasks must be worn. 

Employers should consult legal counsel regarding specific circumstances for individualized legal advice on COVID-19-related workplace issues.

© 2020 Wilson ElserNational Law Review, Volume X, Number 195

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About this Author

Gregg S. Kahn Employment & Labor Attorney Wilson Elser New Jersey
Partner

Gregg Kahn focuses his practice on labor and employment litigation, representing employers of all sizes. Gregg also devotes a substantial portion of his time to professional liability defense and real estate litigation. In his various roles over the course of his career, Gregg has counseled clients, handled complex litigation and coordinated litigation services on a nationwide basis.

Gregg has successfully defended numerous property managers and real estate brokers before HUD and the New Jersey Division on Civil Rights against charges of various forms of discrimination. Additionally...

973.735.6031
Laura Stutz Labor & Employment Litigation Attorney Wilson Elser Law Firm
Counsel

Laura Stutz practices in the area of employment law counseling and litigation. She represents management in the hospitality, retail, financial services and health care industries, including hospitals and hospital systems, nursing homes, clinical laboratories, acute care centers and retail pharmaceuticals. Laura’s practice involves counseling employers on employment laws and employee benefit issues arising under ERISA. She also litigates on behalf of management in state and federal courts and before administrative agencies over disputes involving claims of discrimination, harassment, wrongful discharge, retaliation, whistleblowing, wage-and-hour noncompliance, misappropriation of trade secrets, and enforcement of non-competition and non-solicitation agreements. 

Several of Laura’s cases have centered on hot-button issues such as claims involving the Equal Pay Act and other wage-and-hour laws, Title VII of the Civil Rights Act of 1964, the Americans with Disabilities Act and its 2008 amendment, the Age Discrimination in Employment Act, the Family and Medical Leave Act, Section 1981 of the Civil Rights Act and state law fair employment statutes. Laura also handles employment-related tort, contract and whistleblower claims.  She has litigated employment cases in state and federal courts and taken appeals up to the Second Circuit and Third Circuit Courts of Appeals. Laura also has successfully defended employers in charges of discrimination filed with the Equal Employment Opportunity Commission, U.S. Department of Labor, U.S. Department of Health and Human Services Office of Civil Rights and various state agencies. 

After law school, Laura served as a judicial law clerk to the Honorable Richard Newman, Judge of the Appellate Division, Superior Court of New Jersey. Before her clerkship, while pursuing her law degree, Laura received the Raymond del Tufo, Jr. Constitutional Law Award as well as an award for her pro bono service.

Areas of Focus

Employment Litigation and Compliance
Laura partners with clients to achieve their goals in the areas of compliance and litigation avoidance. She provides counsel and advice on an array of employment issues from hires to terminations and everything in between, including disciplinary actions, compliance with state and federal wage-and-hour laws, prevention of workplace harassment and violence, leaves of absence, workplace accommodations, restructurings, and due diligence related to M&A and other business transactions, and workplace issues involving Stark, HIPAA and state privacy laws.  Laura also prepares workplace policies, contracts and other documents, and guides and conducts internal investigations.

973.735.1461