The National Sea Grant Law Center


  • PPE: The New Norm

  • July 6th, 2020 — by Caroline Heavey — Category: COVID-19 OSHA

  • PPE has become a household term during the COVID-19 pandemic. If your family is like mine, you might even have a PPE station by your backdoor to make sure you are prepared whenever you go out. We are all taking precautions to ward off the virus and help slow the spread. Even though PPE is new to most of our vocabulary, personal protective equipment—PPE’s proper name—is not a new concept when it comes to workplace safety. OSHA has enforced workplace safety standards requiring PPE as a mechanism to mitigate worker exposure to workplace hazards that can not be eliminated entirely. As America goes back to work, many employers who never before had to consider a need for PPE must do so to combat the risk of COVID-19.

    PPE acts to control exposure. PPE includes not only protective equipment for someone’s eyes, face, head, and extremities, but also protective clothing, respiratory devices, and protective shields and barriers. An employer must ensure that the required PPE is sufficient to abate the identified hazard. This means that employers must monitor the condition of the PPE and ensure that damaged or defective PPE is not used. Furthermore, an employer must train workers on (1) when PPE is necessary; (2) what PPE is necessary; (3) how to properly don (put on), doff (take off), adjust, and wear PPE; (4) limitations of the PPE; and (5) proper care, maintenance, useful life, and disposal of the PPE. Employers must also provide all required PPE for employees at no cost to the employees. Importantly in this context, OSHA defines employees as those on the payroll and independent contractors supervised by the employer on a daily basis. Regardless, an employer is not obligated to pay for replacement PPE when the PPE is lost or intentionally damaged by an employee. Furthermore, a worker may choose to supply their own PPE. In such a case, an employer is not obligated to reimburse the worker. When a worker wants more protection than what the employer requires, the worker must supply it themself and bear the cost. In sum, employer-required PPE used solely at the workplace and not for personal use must be provided by the employer at no cost to the employee, but employees may be required to pay for PPE beyond that required by the employer.

    The type of PPE an employer is to require correlates with the results of the hazard assessment. Thus, employers must evaluate potential hazards, including exposure to COVID-19. With respect to COVID-19 specifically, employers may rely on data relating to identified sick individuals who have signs, symptoms, and/or a history of travel to COVID-19-affected areas. These considerations are not a conclusive list and meant only to offer guidance for employers on possible necessary considerations. However, due to the logistical complications and limited supply during the pandemic, OSHA has authorized leniency and employer discretion regarding the use of PPE to combat the spread COVID-19.

    OSHA encourages employers to use PPE and cloth face coverings to protect workers when returning to work during the pandemic. Cloth face coverings are garments worn over the mouth and nose to contain the respiratory droplets of the wearer. Cloth face coverings are not PPE according to OSHA since they do not protect the wearer. Even if they are not a proper substitute for PPE, however, cloth face coverings are an effective form of source control. Thus, OSHA encourages employers to urge workers to wear them to control the spread of COVID-19. Cloth face coverings are reusable, but must be cleaned according to CDC standards.

    Surgical masks are PPE when used to protect against sprays and splashes containing potentially infectious material, but they are not considered PPE when solely used to contain the respiratory droplets of the wearer. Nevertheless, an employer may use surgical masks as a means to control exposure to COVID-19. Unlike cloth face coverings, surgical masks must be disposed of after use.

    Finally, respirators are filtering facepieces used to prevent inhaling airborne particles, including infectious materials. They are more intensive than cloth face covering and surgical masks and, thus, necessitate proper certification and training. Adequate PPE is important to ensure proper protection.

    Providing PPE and encouraging workers to wear cloth face coverings can help instill confidence in employees as America returns to work. When employers take action to protect workers and provide a safe and healthful work environment, workers are more willing to return to work. It is imperative that employers protect their employees but, more importantly, we all need to properly use PPE and face coverings both at work and at home to safely and effectively combat the spread of COVID-19.

  • Caroline Heavey
    NSGLC COVID-19 Rapid Response Research Associate

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