Identifying Counterfeit and Fake N95 Masks

Approximately 10 million fake 3M N95 masks have been distributed in at least five states, and federal, and state authorities are managing to seize and cease the counterfeit ring. The masks are designed to mimic 3M N95 masks, with details including raised marking and printed logos. As a response, 3M has issued a warning describing the model and lot numbers to look out for when purchasing masks. 

The National Institute of Occupational Safety and Health (NIOSH) has also released a guide on how to spot masks that are falsely claimed to be approved by the NIOSH. NIOSH-approved masks will have an official approval label on or within the packaging, and the filtering facepiece respirator (FFR) of the N95 masks should also have an abbreviated approval. 

The NIOSH Certified Equipment List (CEL) or the NIOSH Trusted-Source page can be used as a resource to verify and determine whether NIOSH has approved the respirator. The approved FFRs include N95, N99, N100, R95, R99, R100, P95, P99, and P100.  

Signs that a respirator may be counterfeit:

• No markings at all on the filtering facepiece respirator (FFR).

• No approval (TC) number on FFR or headband.

• No NIOSH markings.

• NIOSH spelled incorrectly.

• Presence of decorative fabric or other decorative add-ons (e.g., sequins).

• Claims of approval for children (NIOSH does not approve any type of respiratory protection for children).

• FFR has ear loops instead of headbands.

NIOSH also offers additional tips on how to identify counterfeit masks, including third-party marketplaces. Some things to consider include: 

• If a listing claims to be “legitimate” and “genuine,” it likely is not.

• Examine transactions history and feedback if possible

• Look for fluctuations of items traded over time (high or low transaction periods)

• Look for price deviations and fluctuations (Is it too good to be true?)

• Look at the quantity a buyer has in stock.

• During a time of shortage, advertising “unlimited stock” could indicate that the respirator is not approved.

• Does the seller break marketplace policy and hide their contact information within images to circumvent filters.

New COVID Testing Guidance Requiring Employers To Obtain Informed Consent

The Centers for Disease Control and Prevention (CDC) recently issued new guidance that will require employers to get informed consent from employees before testing them for COVID-19. In October, the CDC released guidance on employer testing, but it did not issue revised guidance containing the informed consent requirement until January 21. The new guidance states that “informed consent required disclosure, understanding, and free choice and is necessary for an employee to act independently and make choices according to their values, goals, and preferences.”

Earlier guidance issued by the Equal Employment Opportunity Commission (EEOC) also directed employers to obtain informed consent before testing. The CDC recommends employers to provide the workers who will be tested with “complete and understandable information about how the employer’s testing program may impact employee’ lives, such as if a positive test result or declination to participate in testing may mean exclusion from work.” 

According to the CDC, a few things for an employer to consider when developing a COVID testing program should be:

• Why is the employer offering the test to begin with?

• How frequently will employees be tested?

• How to effectively obtain employee consent.

• What to do if an employee declines to be tested.

The CDC also offers a list of key measures an employer should implement when developing a testing program to ensure that informed consent is obtained, including:

• Ensure safeguards are in place to protect an employee’s privacy and confidentiality.

• Provide complete and understandable information about how the employer’s testing program may impact employees’ lives, such as if a positive test result or declination to participate in testing may mean exclusion from work.

• Explain any parts of the testing program an employee would consider especially important when deciding whether to participate. This involves explaining the key reasons that may guide their decision.

• Provide information about the testing program in the employee’s preferred language using non-technical terms. Consider obtaining employee input on the readability of the information. Employers can use this tool to create clear messages.

• Encourage supervisors and co-workers to avoid pressuring employees to participate in testing.

• Encourage and answer questions during the consent process. The consent process is active information sharing between an employer or their representative and an employee, in which the employer discloses the information, answers questions to facilitate understanding, and promotes the employee’s free choice.