Over the past several weeks, the Centers for Disease Control and Prevention and other experts have advised Americans to avoid use of cloth masks as a preventative measure against exposure to and spreading the Omicron variant of the COVID-19 virus. Instead, the experts recommend that persons use surgical masks, or even better, N95 or KN95 respirators. Some state and municipal governments have distributed these respirators to the public, and the federal government is contemplating similar distributions.

Employers who read this information may be tempted to require use of respirators by employees at work. While this move may help reduce the chances of workplace spread of the Omicron variant, mandating respirator use brings with it certain OSHA compliance requirements. Under OSHA rules (29 C.F.R. §1910.134), employers that mandate use of respirators must provide employees with measures that include fit testing, medical questionnaires, and training in the appropriate use of the equipment.

Last year, OSHA adopted a “mini-respirator standard” (29 C.F.R. §1910.504) that somewhat relaxes some of these requirements, including fit testing where the N95 or equivalent respirators are provided by the employer, but not mandated for COVID-19 protection purposes. This was part of the health care COVID-19 ETS. While most of that rule was withdrawn by OSHA, the agency said that the respirator rules continue in effect.

If the employer provides respirators to employees, or arguably even encourages their use to employees, the mini-respirator standard applies. If the employer only requires or encourages use of surgical or other non-respirator, non-cloth masks at work and an employee chooses to use their own N95 or KN95, these OSHA requirements should not apply, unless the work itself requires use of a respirator.

Employers should keep these distinctions in mind when drafting or revising masking policies.