PPE Training and COVID-19: What Employers Need to Know

Personal protective equipment (PPE) has become synonymous with the COVID-19 pandemic, but it has always been part of the workplace safety structure created by the Occupational Safety and Health Administration (OSHA) regulations. OSHA requires that employers protect their employees from workplace hazards that can cause injury or illness. When engineering, work practice, and administrative controls are not feasible or do not provide enough protection, employers are required to provide PPE to their employees and ensure its use.[1] PPE encompasses several items including gloves, respirators, and other face coverings.[2]

Employers are obligated to identify and provide appropriate PPE for employees, train employees in the use and care of the PPE, and maintain PPE, including replacing worn or damaged PPE.[3] In assessing potential hazards, employers should consider if and when their workers may encounter someone infected with COVID-19 in the course of their duties.[4] Employers should also assess if workers could be exposed to environments or materials contaminated with the virus.[5] OSHA considers those employees at high risk of exposure to the virus to include:

• healthcare workers performing aerosol-generating procedures (e.g., intubation and cough induction procedures) on known or suspected COVID-19 patients;
• healthcare or laboratory personnel collecting or handling specimens from known or suspected COVID-19 patients;
• morgue workers performing autopsies, which generally involve aerosol-generating procedures, on the bodies of people who are known to have, or are suspected of having, COVID-19 at the time of their death; and
• medical transport workers moving known or suspected COVID-19 patients in enclosed vehicles.[6]

These high-risk workers need sophisticated and highly effective PPE, and therefore they also need corresponding and appropriate training in the use of such PPE. On the other hand, the following workers are considered by OSHA to be at low risk of exposure and may need less sophisticated PPE, or none:

• remote workers;
• office workers who do not have frequent close contact with coworkers, customers, or the public;
• manufacturing and industrial facility workers who do not have frequent close contact with coworkers, customers, or the public; and
• healthcare workers providing only telemedicine services.

Face coverings, whether they are surgical masks, homemade cloth masks, 3M-type filters, or a simple bandanna have become commonplace and required in the public areas of some localities. The Centers for Disease Control and Prevention (CDC) recently issued new recommendations to the general public recommending the use of cloth face masks where other social distancing measures are difficult to maintain, especially in areas of significant community-based transmission.[7]

At this time, there is no definitive answer from OSHA as to whether such CDC-recommended cloth face masks or other similar coverings qualify as PPE and therefore create obligations for employers, including the requirement to train. Employers are required to issue face coverings to their employees to protect them from various potential hazards, but a virus does not appear to fall within any of the categories listed by OSHA.[8] However, employers do have a more general requirement to issue PPE to protect their employees from potential injury or illness when existing controls are insufficient.[9] On the other hand, PPE has traditionally been thought of as a way to protect the employee wearing the PPE, not to protect others in the employee’s vicinity from being harmed. Because the professed reasoning for requiring use of face masks in public spaces during the current COVID-19 pandemic is to protect others in the vicinity of the wearer, and not the wearers themselves, this cuts against a finding that cloth masks and other similar face coverings are PPE.

If OSHA finds face coverings are PPE, however, employers will be required to ensure they are adequate and the employees wearing them have been properly trained in their use. This training will have to include instruction on:

• when face coverings are necessary;
• what type of face coverings are necessary;
• how to properly don, doff, adjust, and wear face coverings;
• the limitations of the face coverings; and,
• the proper care, maintenance, useful life and disposal of the face coverings.[10]

Each affected employee will have to demonstrate an understanding of the training specified above and the ability to use face coverings properly before being allowed to perform work requiring the use of face coverings.[11] Retraining will be necessary in situations where a previously-trained employee lacks the requisite understanding as described above, including situations where changes in the workplace render previous training obsolete, or changes in the types of face covering to be used render previous training obsolete, or inadequacies in an affected employee’s knowledge or use of assigned face coverings indicate that the employee has not retained the requisite understanding or skill.[12]

If OSHA determines cloth masks and other face coverings are not PPE, employers might still have obligations when using them as a form of administrative control to ensure employees use them safely. Employers most likely will need to provide general information on safe usage of any required mask. For mandatory use, employers will need to emphasize the limitations of cloth and surgical masks so that it is clear to employees that, unlike N-95 respirators, the simpler masks lack a filtration system that prevents particles from entering the lungs.

Respirators, as opposed to cloth and other simpler face coverings, may be necessary in certain circumstances in the post-COVID environment. OSHA defines a number of different types of respirators, some of which utilize filtering systems to “clean” incoming air, and others that supply breathable air from an independent source.[13] Employers must provide respirators that are applicable and suitable for the purpose intended, i.e., providing protection to employees from the coronavirus and preventing infection of nearby employees and customers.[14] Employers are responsible for establishing and maintaining a respiratory protection program that includes training of employees in the respiratory hazards to which they are potentially exposed during routine and emergency situations, and training of employees in the proper use of respirators, including putting on and removing them, any limitations on their use, and their maintenance.[15]

Respirator training is to be provided by employers at no cost to their employees.[16] Training must be comprehensive, understandable and recur at least annually.[17] The training provided by employers must ensure that each employee can demonstrate knowledge of at least the following:

• the reason the respirator is necessary and how improper fit, usage, or maintenance can compromise the protective effect of the respirator;
• what the limitations and capabilities of the respirator are;
• how to use the respirator effectively in emergency situations, including situations in which the respirator malfunctions;
• how to inspect, put on and remove, use, and check the seals of the respirator;
• what the procedures are for maintenance and storage of the respirator; and
• how to recognize medical signs and symptoms that may limit or prevent the effective use of respirators.[18]

Training must be conducted in a manner that is understandable to each employee, including providing translations for other languages.[19] Employers must provide training prior to requiring their employees to use respirators in the workplace.[20] Employees who can demonstrate knowledge of the elements listed above are not required to repeat training.[21] However, retraining is required when:

• changes in the workplace or the type of respirator render previous training obsolete;
• inadequacies in an employee’s knowledge or use of the respirator indicate that the employee has not retained the requisite understanding or skill; or
• any other situation arises in which retraining appears necessary to ensure safe respirator use.[22]

Whether or not a given workplace necessitates the use of respirators as opposed to some other form of PPE, training in the proper use of PPE will be required for any jobsite where it is difficult for coworkers to socially distance. As this is a difficult time to try to gather employees together for training, employers should use common sense. They should make sure they have good written policies and procedures and issue directives requiring physical distancing as much as is feasible to complete their work. For essential workers, there may be some interaction happening day-in and day-out as work goes on. However, practicing physical distancing as best as possible remains crucial.

One option for employers is to send links to videos demonstrating proper training, such as proper techniques and when to wear PPE. Additional written procedures and virtual training can be distributed to frontline supervision and dispersed down to individual employees. Supervisors can use daily briefings to go over the way the employer and its employees properly use and care for PPE.

Cloth face masks and other simple face coverings would not be not considered respirators under OSHA rules. If employees are working in conditions that would require the use of respirators to prevent the spread of coronavirus, employers may put themselves at risk of liability if they allow their employees to wear cloth masks on the job in lieu of appropriate PPE.

The COVID-19 pandemic has created a “new normal” for commercial activities, and while it is still too early to tell if some of the changes will be permanent, it is incumbent on employers to be proactive.  Now is the time for employers to protect their business from potential litigation and take necessary steps to demonstrate to their employees, customers and OSHA that they are doing everything possible to provide a safe workplace environment. It would be prudent for companies to consult with an experienced attorney to ensure they understand their rights and obligations regarding PPE training in the workplace.

---

Author: Jeffrey T. Thayer (Partner, San Francisco) Editor: S. Christopher Collier (Senior Partner, Atlanta)

Hawkins Parnell & Young's national litigation team is helping businesses across the United States navigate unprecedented legal challenges arising from the COVID-19 pandemic. Visit our COVID-19 Resource Center for the latest insights and guidance.

---