New DOL Coronavirus Guidance Includes Mask Reuse Rules

By Braden Campbell
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Law360 (April 3, 2020, 5:13 PM EDT) -- The U.S. Department of Labor issued temporary guidelines for rationing and reusing filtering respirators amid the ongoing face mask shortage Friday alongside additional guidance on the new federal sick leave mandate and the recent unemployment expansion.

The interim enforcement guidance issued by the DOL's Occupational Safety and Health Administration directs employers to reduce their need for N95 respirators by changing practices, such as by moving operations outdoors. It also includes guidelines for reusing respirators and using expired masks.

"Due to the impact on workplace conditions caused by limited supplies of N95 [filtering face piece respirators], employers should reassess their engineering controls, work practices and administrative controls to identify any changes they can make to decrease the need for N95 respirators," the agency said.

The DOL also released a webinar on the scope of the recent paid sick leave expansion Friday, a day after issuing a letter on workers' unemployment eligibility under the March 27 coronavirus stimulus package.

The agency has continued to pump out guidances for workers, employers and others grappling with the coronavirus and recent legislation responding to the crisis. It issued a temporary regulation Wednesday detailing employers' obligations to provide sick leave under the Families First Coronavirus Response Act, adding to a lengthy Q&A and other documents the agency has added to its website over the last few weeks.

The new OSHA memo follows up on the March 14 enforcement guidance directing employers to conserve supplies of N95 respirators by using alternate models and using fit-testing methods that don't destroy the masks. Friday's memo, issued as enforcement guidelines for the agency's safety inspectors, lays out rules for stretching supplies by extending mask use, reusing masks or using masks that have expired.

The DOL said workers can reuse or continue using respirators as long as the masks retain their "structural and functional integrity" and the filter material is not "physically damaged, soiled, or contaminated." Extended use is preferable to reuse because of the risk of transmission when removing and replacing masks, the agency said.

As for expired masks, employers that have made "a good faith effort" to secure more may use government-certified masks as long as they notify workers that the masks have expired, don't mix expired masks with equipment within its shelf life, and inspect the masks for proper function, the agency said. However, health care workers should not use expired masks when performing surgical procedures on coronavirus-infected patients, the agency said.

The guidance allows OSHA inspectors to hold back on issuing citations for violations of federal respirator use standards if the employer has attempted to find alternative masks, prioritized N95 mask use based on guidance from the Centers for Disease Control and Prevention, provided surgical masks and eye protection and taken "other feasible measures." A DOL representative did not immediately say Friday whether these enforcement guidelines relax or reiterate typical OSHA standards.

The DOL's Wage and Hour Division also issued new guidance Friday on the FFCRA, which provides workers with short- and long-term leave for various circumstances related to the coronavirus. The guidance includes a recorded webinar explaining which employers the law covers, when they must provide leave and what they must pay.

"The Wage and Hour Division continues to prioritize providing the information that workers and employers need to be fully informed about their rights and protections under this critical new law," Wage and Hour Division Administrator Cheryl Stanton said in a statement.

On Thursday, the DOL's Employment and Training Administration sent state workforce agencies a letter summarizing the unemployment provisions of the Coronavirus Aid, Relief and Economic Security Act, which gives unemployed workers an additional $600 per week and extends the term of state benefits.

--Editing by Haylee Pearl.

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