OSHA has issued three new alerts in its industry-specific series aimed at increasing worker protection during the COVID-19 pandemic.  The new alerts, issued on April 13, 16 and 21, are directed at employees in package delivery, manufacturing, and construction.  A fourth alert, directed at retail industry workers, was issued on April 8 and covered in a prior Franczek client alert.

All four industry alerts contemplate a number of common safety  precautions, including maintaining social distancing of 6 feet or more where possible; “allowing” employees to wear masks covering their nose and mouth to prevent the spread of the virus; training employees on the proper donning, doffing and use of personal protective equipment (PPE); and providing hand sanitizer where employee access to soap and water is not readily available.

The manufacturing and construction industry alerts also contain some additional precautions recommended for those specific industries. The manufacturing industry alert recommends that manufacturers establish flexible work schedules, including staggered shifts, where feasible and reconfigure work stations, including the installation of plexiglass barriers, where social distancing is not feasible.  The construction industry alert recommends that construction employers take the following additional steps:

• Where tools and equipment are shared, provide and instruct employees to use alcohol-based wipes to clean tools before and after use;
• Keep toolbox talks, safety meetings and other in-person gatherings as short as possible, limit the number of employees in attendance, and use social distancing practices; and
• Clean and disinfect portable jobsite toilets regularly, including frequently touched items like door pulls and toilet sets, and provide hand sanitizer.

In all four industry alerts, OSHA advises employers to “allow” employees to wear masks, stopping short of recommending that employers require that employees wear masks. According to the alerts, the purpose of wearing masks is to prevent the spread of the virus to others rather than to protect the wearer, whereas the latter is typically the goal of an OSHA mandate. None of the alerts defines the term “masks,” which arguably includes both commercially manufactured devices like N95’s and surgical masks as well as homemade face coverings.

With respect to homemade face coverings which are recommended by the CDC for use by the general public to preserve the limited inventory of N95’s and surgical masks for first responders and medical personnel, OSHA has said that homemade face coverings are not PPE.  This is significant because it relieves employers of having to first conduct the hazard assessment of their workplaces required by the PPE standard (29 CFR 1910.132). Notably, OSHA still has not clarified whether homemade face coverings fall within its respiratory protection standard (29 CFR 1910.134). N95’s and surgical masks are covered by that standard, and when employers require their use in the workplace, they must adopt a modified version of a written respiratory protection program, including evaluation of whether employees are medically fit to wear such a mask, an undertaking that would be challenging if not impossible given the current strain on healthcare workers. In the Chicago area, local municipalities have entered the fray, with nearly 20 suburbs requiring the use of face coverings in public and in the workplace. As of this writing, Cicero, Oak Brook, Oak Lawn, and Tinley Park all affirmatively require employers to provide face coverings and the Village of Des Plaines requires employers to provide face coverings for employees who cannot provide their own.