Wisconsin’s recent emergency orders signal that the process of re-opening the state’s economy after the COVID-19 public health emergency is starting, but slowly. With some businesses starting to reopen, and other businesses continuing operations to the extent permitted, many employers are utilizing personal protective equipment (PPE), signage and other social distance control measures to help protect their employees and customers. This Legal Update discusses the legal issues involved when public and private sector employers[1] require or permit their employees to use PPE in the workplace, as well as the social distance-control measures that are required of businesses that operate during the COVID-19 public health emergency.
The Use of Face Coverings and Other PPE
PPE can refer to many items of work-related safety equipment, including hard hats, safety shoes, eye protection, respirators, gloves, face masks, face coverings, and gowns. For purposes of this article, the term PPE will refer to the types of PPE best suited to protect the wearer or others from spreading COVID-19, including face masks, face coverings, latex and latex-free gloves, and gowns.
Because the coronavirus that causes COVID-19 can be transmitted via sneezing, coughing or breathing, the Centers for Disease Control and Prevention (CDC) recommend that all individuals (with a few exceptions) wear cloth face coverings in community settings, such as grocery stores, pharmacies, and similar businesses where employees and/or customers regularly interact with each other.
The CDC distinguishes cloth “face coverings” from medical grade “face masks”. Face coverings help prevent the wearer from spreading the virus to others by trapping airborne particles emitted when sneezing, coughing or breathing. Face masks, such as N95 respirators and surgical masks, protect the wearer by filtering airborne particles and preventing liquids from contaminating the wearer’s face. Because face masks are in short supply, the CDC is currently recommending that face masks be reserved for medical personnel and not used by the general public. The CDC’s recommendations on making, using, and caring for face coverings are available on the CDC’s website. Employers should consult CDC recommendations when selecting the PPE they will allow or require their employees to wear in the workplace.
Employers should avoid requiring face masks or other medical grade PPE unless their employees work in the medical field. Employers should instead consider allowing or requiring face coverings that meet some basic criteria. The CDC recommends that face coverings should:
- fit snugly but comfortably against the face,
- be secured with ties or ear loops,
- have multiple layers of a tightly-woven cotton fabric,
- allow the wearer to breath without restriction, and
- be capable of being laundered and machine-dried without damage or distortion.
Apart from face coverings, the CDC is not recommending the use of PPE (e.g., gloves or gowns) where not routinely recommended. This and the CDC’s other guidance for businesses is available here. Any face covering or other PPE should be used in addition to the CDC’s social distancing guidelines, not in place of them.
Employers that institute a policy of permitting employees to wear face coverings or other PPE while at work should first consider any additional hazards posed by the PPE. Employers should review their existing policies and consider the job duties of each employee to ensure that the use of a face covering or other PPE, and the type of face covering or other PPE used, does not present additional hazards for the employee or others. For example, employers may have existing policies regarding loose clothing for employees that work near or around machinery or tools with moving parts. The use of a bandana placed on the face and tied behind the neck could pose special hazards for those employees.
Likewise, the CDC recommends that face coverings be cleaned regularly. Soiled, tainted, or otherwise unclean face coverings or other PPE pose risks to the wearer and others and may actually contribute to, rather than prevent, the spread of viruses. Employers should set clear guidelines on the use and care of face coverings or other PPE used in the workplace.
Employers that institute policies requiring employees to wear face coverings or other PPE should consider the legal issues that may arise from such a policy, including issues under Occupational Safety and Health Administration (OSHA) regulations, the Americans with Disabilities Act (ADA), Title VII of the Civil Rights Act of 1964, and the Wisconsin Fair Employment Act (WFEA).
OSHA
OSHA’s website provides guidance regarding COVID-19 for employers. OSHA also recommends that employers consult CDC recommendations regarding COVID-19 PPE for their employees.
Some PPE, such as face masks and respirators, must meet OSHA’s regulatory standards. Because the CDC is currently recommending that those types of PPE be reserved for medical personnel, employers should avoid requiring face masks or respirators unless a hazard assessment under OSHA requires such PPE.
Other PPE, such as face coverings, are not generally covered by OSHA’s PPE standards. However, OSHA regulations that govern the costs of PPE may still apply. Under OSHA regulations, 29 CFR 1910.132(h)(1), the costs of any PPE that an employer requires employees to wear in the workplace must be paid for by the employer, except that employers are not required to pay for the following:
- Steel-toe shoes and boots (if an employer allows employees to wear them outside work),
- Everyday clothing (that may be worn outside work), or
- Replacements for PPE provided by the employer that were lost or intentionally damaged by the employee.
Under those regulations, employers that institute policies requiring employees to wear face coverings or other PPE must pay for or provide their employees with the required PPE at no cost to the employee. In the event an employee loses or intentionally damages the PPE provided by the employer, the employer may require the employee to pay for the replacement PPE.
Where an employee already owns a face covering, gloves or other PPE for which no OSHA standards apply, and the employer has required the PPE, the employer may allow that employee to use the employee’s PPE, as long as it meets the standards set for other employees and the employer ensures the PPE is properly maintained and sanitized like the PPE of other employees. In such case, an employer is not required to reimburse the employee for the cost of the PPE.
Where an employer has not required employees to use PPE, but an employee would like to use his or her own PPE, an employer may permit the employee to do so and need not reimburse the employee for the cost of the PPE. If the PPE in question is a face mask or respirator or other PPE to which OSHA standards apply, an employer is still responsible for ensuring that the employee’s PPE does not create additional hazards and is properly used, stored and maintained.
Finally, OSHA regulations, 29 CFR 1910.132(f)(1), require employers to provide proper training for their employees regarding any required PPE. Such training should include, at a minimum, the following:
- When PPE is necessary;
- What PPE is necessary;
- How to properly don, doff, adjust, and wear PPE;
- The limitations of the PPE; and,
- The proper care, maintenance, useful life and disposal of the PPE.
Employers should consult the CDC’s recommendations (accessible through the link provided above) for best practices on the use, care, and disposal of face coverings and other PPE.
ADA Issues
Employers should also be aware of ADA issues that may arise when requiring the use of PPE. For example, the CDC cautions that individuals with pre-existing respiratory conditions, such as asthma or COPD, should not wear face coverings because it can make breathing difficult and/or dangerous for the employee. An employee who, because of the employee’s medical condition, objects to the use of PPE required by an employer may be protected under the ADA. The ADA requires an employer in such a situation to begin the interactive process with the employee and his/her health care provider to determine whether a reasonable accommodation is available to the employee so as to allow the employee to comply with the employer’s work rules and avoid violating medical restrictions.
Title VII and WFEA Issues
Issues involving Title VII and/or the WFEA may arise when requiring employees to use PPE. Title VII applies to any public or private sector employer with 15 or more employees. The WFEA applies to all Wisconsin public and private sector employers with at least one employee. Title VII and the WFEA protect individuals from employment discrimination on the basis of race, religion, sex, or national origin, among others. An employee’s objection to wearing PPE may relate to one of the protected classifications under Title VII and/or the WFEA. For example, an employee may object to wearing PPE on religious grounds because the PPE interferes with the grooming or dress practices of his or her religion. In such case, an employer should recognize the Title VII and/or WFEA issue and begin the interactive process of discussing reasonable accommodations with the employee and provide such accommodations as needed.
The Use of Signage and Other Social Distance Control Measures
The CDC recommends that face coverings and other PPE be used in conjunction with other social distancing measures. Additionally, Wisconsin’s current Safer at Home order requires such measures. Emergency Order 28 provides that essential businesses and operations shall, among other things, “to the greatest extent feasible, comply with Social Distancing Requirements as defined in this Order between all individuals on the premises, including but not limited to employees, customers, and members of the public.” Per Emergency Order 28, those Social Distancing Requirements are defined to include:
- Maintaining social distancing of six (6) feet between people;
- Washing hands with soap and water for at least 20 seconds as frequently as possible or using hand sanitizer;
- Covering coughs or sneezes (into the sleeve or elbow, not hands);
- Regularly cleaning high-touch surfaces;
- Not shaking hands; and
- Following all other public health recommendations issued by DHS and the U.S. Centers for Disease Control.
Thus, in addition to permitting or requiring the use of face coverings and other PPE by its employees, employers must also require that employees adhere to the required social distancing requirements if they are present in the workplace. For businesses that regularly engage with customers or members of the community, this may mean posting signs to direct the flow of foot traffic, as well as using tape to mark safe distances for customers, members of the community, and employees to stand while waiting in line and/or interacting. It may also mean limiting the number of customers or members of the community allowed inside a business or facility at a given time, using curb-side or drive-thru service when possible, reducing the number of office items (such as phones) that are shared between employees, and installing barriers such as clear plastic sneeze guards where feasible.
Employers should also take additional measures, such as regularly sanitizing counters, door handles, pens and any other surfaces or items that are regularly touched by employees and customers or members of the community; encouraging employees to wash hands or use hand sanitizer as frequently as possible; encouraging employees to properly cover coughs and sneezes; and, encouraging employees to stay home when they are sick.
[1] This article focuses on employers of employees working in non-medical fields. CDC recommendations, OSHA regulations, as well as other applicable state and federal laws, will be different for employers of employees that work in the medical field.