Employers are well advised to revisit their policies and practices in light of the CDC guidance.

On February 10, 2021, the Centers for Disease Control and Prevention (CDC) updated its Guidance for Wearing Masks and Improve How Your Mask Protects You and Improve the Fit and Filtration of Your Mask to Reduce the Spread of COVID-19 resource pages.

While the CDC continues to stress the importance of wearing masks to protect others as well as yourself from COVID-19, this recent guidance is notable because it summarizes several recent studies and experiments evaluating various mask combinations and highlights, for example, that wearing a second cloth mask on top of a first medical procedure mask (to create a “double mask”) provides much better protection to both the wearer and others compared to wearing a cloth or medical procedure mask alone. The CDC did not go as far as requiring or recommending double masking―at least not yet.

This updated guidance from the CDC comes on the heels of a number of other mask-wearing initiatives. As we have previously reported, the CDC recently issued an order requiring mask wearing on public transportation and President Joe Biden signed an executive order requiring mask wearing in federal buildings. Plus, OSHA has issued its own guidance which employers must consider.

Masks in the Workplace

Pursuant to President Biden’s January 21, 2021, Executive Order on Protecting Worker Health and Safety, on January 29, 2021, OSHA issued new comprehensive COVID-19 guidance. According to this guidance aimed at employers outside of healthcare, employers should provide all workers with face coverings at no cost, unless their work task requires a respirator. The updated OSHA guidance provides:

Face coverings are simple barriers to help prevent your respiratory droplets or aerosols from reaching others. Not all face coverings are the same; the CDC recommends that face coverings be made of at least two layers of a tightly woven breathable fabric, such as cotton, and should not have exhalation valves or vents.

Employers are well advised to revisit their policies and practices in light of the CDC guidance. More specifically, it is anticipated that OSHA will issue in March an emergency standard regarding COVID-19 that will include a mask mandate.

Even though OSHA has not (yet) issued a standard mandating masks, failure to comply with its guidance may result in liability under OSHA’s general duty clause. OSHA already has pledged more aggressive enforcement.

And there’s more. Recently, there have been reports of draft national standards circulating with respect to levels of face mask protection. Duane Morris will issue an additional Alert as soon as information becomes available.

Pulling together the guidance to date, employers should consider that in providing face coverings to their employees, OSHA guidance, citing to the CDC, now suggests that face coverings should be made of at least two layers of a tightly woven breathable fabric, such as cotton, and should not have exhalation valves or vents.

Businesses are well advised to communicate their mask-wearing requirements to employees, customers, visitors, etc. Education is particularly important with regard to employees.

In developing and communicating their mask requirements and in determining the types of masks to issue to employees, businesses need to consider updated CDC guidance in light of not only OSHA guidance but also state and local laws, as those requirements may vary.

Finally, while there are benefits to double masking, there is currently no federal requirement to double mask and employers need to be thoughtful on whether and how to mandate double masking. If an employer mandates double masking, it needs to monitor for compliance. In this regard, employers may wish to mention the potential benefits of double masking with a link to the CDC so that employees know not only the potential benefits, but also the practices to avoid, such as wearing two disposable masks or a KN95 with any other mask.

Of course, employers must continue to emphasize, as does the CDC, that a mask is not a substitute for social distancing and not all masks provide the same protection.

CDC’s Tips for Mask Wearing

The CDC’s recent guidance provides some helpful tips, useful in both work and nonwork settings, summarized below:

• Make sure your mask fits properly. Gaps can let air with respiratory droplets leak in and out around the edges.
• Choose a mask with a nose wire or use a mask fitter or brace. Bend the nose wire over your nose to conform to your face. Check to make sure it fits snugly over your nose, mouth and chin.
• Wear two masks (double mask). For better fit and extra protection, wear two masks―a disposable mask underneath and a cloth mask on top. However, do not combine two medical procedure masks to create a double mask because medical procedure masks are not designed to fit tightly and wearing a second medical procedure mask does not help to improve the fit. Also, do not combine a KN95 mask with any other masks―only one KN95 mask should be worn at a time.
• Pick a mask made with breathable fabrics (such as cotton) and with tightly woven fabric.
• Select a mask with two or three layers. A mask with layers keeps your respiratory droplets in and others’ out.
• Choose a mask with inner filter pockets. Use a cloth mask that has multiple layers of fabric.
• Knot and tuck ear loops of a three-ply mask. Knot the ear loops of a three-ply face mask where they join the edge of the mask and then fold and tuck the unneeded material under the edges

The CDC also instructs that individuals should not wear:

• A mask that does not fit properly.
• A mask made from material that is hard to breathe through (such as plastic or leather).
• A mask made with loosely woven fabric.
• A mask with exhalation valves or vents.
• A scarf or ski mask as a substitute for a mask.
• Two disposable masks.
• A KN95 mask with any other mask.

About Duane Morris

The Duane Morris Institute is hosting a complimentary webinar on April 1, 2021, to review OSHA’s Emergency COVID-19 Standard(s).

Duane Morris has created a COVID-19 Strategy Team to help employers plan, respond to and address this fast-moving situation. Contact your Duane Morris attorney for more information. Prior Alerts on the topic are available on the team’s webpage.

For More Information

If you have any questions about this Alert, please contact Sharon L. Caffrey, Linda B. Hollinshead, Eve I. Klein, Jonathan D. Wetchler, Lauren Pugh, Jonathan A. Segal, any of the attorneys in our Employment, Labor, Benefits and Immigration Practice Group or the attorney in the firm with whom you are regularly in contact.

Disclaimer: This Alert has been prepared and published for informational purposes only and is not offered, nor should be construed, as legal advice. For more information, please see the firm's full disclaimer.