By James L. Curtis, Brent I. Clark, Ilana R. Morady, Patrick D. Joyce, and Matthew A. Sloan

Seyfarth Synopsis: Important for healthcare workers involved in the care of patients with known or suspected COVID-19, the CDC late last week changed it’s personal protective equipment (PPE) guidance in light of N95 respirator shortages. In addition, OSHA issued updated guidance aimed at providing healthcare employers with alternative measures to protect healthcare workers from respiratory hazards associated with SARS-CoV-2, a/k/a/ COVID-19 or Coronavirus.

Notably, the CDC guidance now permits facemasks (also known as surgical masks) as an acceptable alternative to respirators when the supply chain of respirators cannot meet the demand. The CDC guidance states that available respirators should be prioritized for procedures that are likely to generate respiratory aerosols, which would pose the highest exposure risk to healthcare professionals. Such procedures are typically limited to ICUs and a few other inpatient settings; the vast majority of healthcare workers would not perform such procedures or be in proximity to such procedures.

The updated guidance cautions that when the supply chain of respirators is restored (N95’s in particular), facilities with an OSHA respiratory protection program should return to the use of respirators for employees who care for patients with known or suspected COVID-19.

The updated guidance also highlights the recommendation that eye protection, gown, and gloves continue to be used. Since viral droplets can infect a person through eye mucus, a surgical mask (or an N95 respirator) on its own would be ineffective in preventing infection if cough or sneeze droplets were to spray into a worker’s eyes.

The updated guidance is based on currently available information about COVID-19. Scientific evidence suggests that COVID-19 is most likely spread via droplet route, meaning the viral droplets leave a persons’ mouth or nose and fall to the ground. This is based on other known coronaviruses. Coronaviruses, including SARS-CoV-2, are not believed to be airborne, i.e. not spread via aerosol droplets. N95s and other respirators used in healthcare settings are designed to protect against aerosol droplets. Surgical masks, on the other hand, can provide protection against viral droplets from coughs or sneezes entering the wearer’s nose and mouth.

The relaxed PPE guidance from the CDC has incited criticism from organized labor, including the American Federation of Teachers, the Transport Workers Union of America, and National Nurses United. Nurses and other healthcare workers fear that weaker protections, together with longer and more frequent shifts, puts them at heightened risk of contracting and spreading the illness.

On March 14, 2020, OSHA updated its guidance on respiratory protection for healthcare workers, providing enforcement personnel with discretion to relax enforcement of annual fit testing requirement within the respiratory protection standard in situations where N95 respirators are in short supply. For example, conducting qualitative rather than destructive quantitative fit testing. In such situations, OSHA also cautions employers to “follow existing CDC guidelines, including taking measures to conserve supplies of these respirators while safeguarding [healthcare providers].” Further, OSHA recommends that healthcare workers be provided with other types of respiratory protection, “such as N99 or N100 filtering facepieces, reusable elastomeric respirators with appropriate filters or cartridges, or powered air purifying respirators (PAPR).”

OSHA’s also continues to refer employers to its prior COVID-19 guidance, which provides that “Workers, including those who work within 6 feet of patients known to be, or suspected of being, infected with SARS-CoV-2 and those performing aerosol-generating procedures, need to use respirators.” OSHA’s guidance also states, “When disposable N95 filtering facepiece respirators are not available, consider using other respirators that provide greater protection and improve worker comfort.” This guidance appears to be in conflict with both the updated CDC guidance and the updated OSHA guidance. However, in both guidance documents, OSHA points employers to CDC guidelines. Accordingly, it appears likely (but not certain) that OSHA will defer to the CDC in cases where N95s or other respirators are not available for healthcare workers treating known or suspected COVID-19 patients.

The CDC’s guidance, and an understanding of the coronavirus transmission route, also has implications for general industry. In particular, since facemasks do provide a measure of protection against COVID-19, some employees may wish to wear them in the workplace. While we recommend that employers take a flexible approach toward voluntary facemask use, and generally permit use unless there is a compelling business reason to avoid it, we also recommend that any employee who has COVID-19 symptoms be sent home immediately. In other words, employers should remove the source of the potential hazard such that no employee needs to wear a facemask to minimize or prevent exposure to the novel coronavirus.

Link to guidance:

For more information on this or any related topic, please contact the authors, your Seyfarth attorney, or any member of the Workplace Safety and Health (OSHA/MSHA) Team.