New Legislation Increases N95 Face Mask Supply for U.S. Health Care Workers

Faegre Drinker Biddle & Reath LLP

Faegre Drinker Biddle & Reath LLP

[co-author: Brett Warner]

New legislation signed on March 18, 2020, will bring tens of millions more masks per month into the hands of U.S. health care workers. The new legislation protects N95 mask manufacturers against lawsuits if an N95 face mask sold to a U.S. health care company fails. The new legislation also removes a requirement that masks for health care workers be manufactured on production lines certified by the Food and Drug Administration. Under previous rules, manufacturers were limited to selling 5 million masks per month to U.S. health care companies. The legislative changes will permit N95 mask manufacturers to sell their full supply of N95 face masks to health care companies.

Although N95 face masks for construction workers provide the same level of protection as N95 face masks for health care workers, masks designed for construction workers can vary in design and fit from masks designed for health care workers. According to Nancy Foster, vice president for quality and safety policy at the American Hospital Association, the industrial masks will provide the protection needed to keep health care workers safe.

Some U.S.-based manufacturers have increased or announced plans to increase production by millions of masks per month. For example, Honeywell plans to increase its output by 10 million face masks per month and Owens & Minor said on March 11 that it had aggressively ramped up production of N95 masks and surgical gowns. It is unclear whether the total production will be enough to meet demand if there is a surge in the number of coronavirus patients.

On March 19, Vice President Pence called on construction companies to stop ordering more masks so health care workers can be protected as they treat an influx of patients infected with the coronavirus. “We would make one specific request and that is we would urge construction companies to donate inventory of N95 face masks to your local hospital and forgo additional orders," Pence said from the White House.

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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