Face masks have been known to help slow the spread of COVID-19, making them an effective way to protect the employee, the wider workplace, and the public. As businesses reopen and vaccinations continue to be administered, face masks and coverings are likely to remain popular as a preventative measure. As a matter of fact, many states and cities across the United States are recommending–or requiring–face coverings when out in public, especially when social distancing cannot be maintained effectively. But can you, as an employer, require employees to wear face masks in your workplace? Here is everything you need to know about face masks in the workplace.

Can I, as an employer, require employees to wear face masks?

In short, yes, you can mandate the use of facemasks in the workplace, particularly as a preventative measure against the spread of COVID-19 – but only in specific circumstances. This is due to the fact that after much change in legislation, masks are no longer required indoors in California.

Although the mask mandate has been lifted, the state currently requires everyone to wear masks in the following settings: 

1. Public transit, stations, terminals, and airports
2. Healthcare facilities
3. Emergency shelters
4. Jails and prisons
5. Homeless shelters
6. Long-term care facilities

However, starting on April 3, 2023, the California Department of Public Health will be ending the statewide mask requirement for these locations as well.

Keep in mind that masks are still strongly recommended in indoor public settings, K-12 schools, and childcare centers to reduce the risk of potential transmission. Though both vaccinated and unvaccinated individuals are permitted to resume normal activities without a mask, they must still honor federal, state, local, tribal, or territorial laws, rules, and regulations, including local business and workplace guidelines. 

When are employees required to wear a face mask?

On February 16, 2022, the CDPH updated its masking guidelines allowing vaccinated individuals to shed masks in indoor public settings, including offices and other workplaces. Following suit, on February 28, 2022, Governor Newsom released Executive Order N-5-22, which suspends the ETS rule requiring unvaccinated workers to wear masks indoors, except in specified situations. However, employers are required to mandate face masks in the workplace in the following situations:

• If the employer has onsite indoor health screening, the employees who are being screened and the screeners need to wear face coverings, regardless of vaccination status.
• In the event of an “outbreak” or a “major outbreak,” employees in the exposed group must wear face coverings when indoors, regardless of vaccination status.
• For employees who have had a COVID-19 exposure and are either exempt from quarantine or ending their quarantine after Day 5, and for employees who have tested positive for COVID-19 and are returning to work after Day 5.

Can an employee refuse to wear a face mask?

If an employee refuses to wear a mask that has been required or is otherwise strongly advised by OSHA or the CDC, we recommend that you engage in a dialogue with this employee and explain the need to wear the mask. If the said employee continues to refuse the legal or safety requirement, you may be able to suspend the employee. Make sure this consequence is clearly outlined in your face mask policy.

If a disability prevents the employee from wearing a mask, the employee may be exempt from wearing a mask.

What are the exemptions to wearing a face mask?

As mentioned above, the state still requires employees to wear a face mask in specific settings. However, there are a few instances where an employee may reasonably refuse to wear a face mask:  

1. The mask interferes with the performance of the employee’s job. For example, if the mask fogs up and the employee is unable to see to work.
2. The mask creates a hazard in the workplace. See OSHA guidelines (29 C.F.R. 1910.134(c)(2)(i)), which indicates that respirators can be a hazard. For example, if the mask impedes hearing or smelling a hazard, or if there is a risk the mask will get caught in machinery.  
3. The mask aggravates a medical condition. For example, if an employee has a pre-existing respiratory condition that makes it unsafe to wear a mask.

If an employee has any of the above concerns about wearing a mask, it is best to start a dialogue with the employee to determine a reasonable accommodation. For medical conditions, please engage in the normal interactive dialogue under the Americans with Disabilities Act to verify that the employee cannot wear a mask and state what possible accommodation would allow the employee to work. Depending on your business, accommodation for an employee may mean a physical barrier put up, a workstation that is physically distant from others, or remote work.

For more information on reasonable accommodations under the Americans with Disabilities Act (ADA), the EEOC has released extensive guidance covering employer considerations regarding the pandemic.

What do I need to include in my face mask policy?

To avoid legal troubles down the road, employers who require the use of face masks should write it out in a clear policy and communicate it to employees on a regular basis. Having a policy will protect you and your business if you need to take action against an employee that refused to comply.

Your face mask policy should be based on information provided by the CDC, OSHA, EEOC, and your state and local government policies. A strong face mask policy usually includes: 

• An explanation of COVID-19 with facts on how wearing a mask helps reduce the spread of the virus.
• Instructions or training on wearing, maintaining, and cleaning their face masks properly.
• When and where masks should be worn or taken off.
• Where employees will obtain masks (i.e. who will supply the masks and what kind of masks will be supplied).
• Cleaning or disposing of masks (i.e. how masks need to be washed or how they need to be disposed of in biohazard bags).
• Consequences of not complying with the policy.
• Employee signature signing off on the new face mask policy for legal purposes.

Make sure your policy is specifically written and backed by your attorney and legal team. Though the arrival of the COVID-19 vaccine has changed the way that fully vaccinated people are allowed to interact and function, we recommend you continue to update the policy as government recommendations change.

Do I need to pay for face masks for my employees?

It depends. Currently, there are directives in certain states and cities specifically requiring the employer to provide or pay for the masks for employees and to make sure employees are wearing the masks. For example, employers in Oregon must provide and pay for face coverings for employees. California employers must provide face coverings at no cost to employees if masks are required by CDPH.

It is important to note, however, that there are existing state laws that may require employers to pay for the masks. The California Labor Code requires employers to reimburse employees “for all necessary expenditures or losses incurred by the employee in direct consequence of the discharge of his or her duties.” Additionally, OSHA generally requires employers to provide or pay for personal protective equipment (PPE), such as safety glasses, that employees must wear to protect themselves from workplace hazards. These requirements may change rapidly as OSHA follows the recent CDC guidance.

However, specific face masks, like cloth face masks, are not considered PPE and under OSHA regulations, the employer would not be required to pay for it. Unlike N95 respirators and surgical masks, cloth face coverings are intended to protect others from the wearer’s respiratory droplets rather than to protect the wearer from exposure to the virus. As such, both OSHA and the CDC have said in guidance documents that homemade cloth face coverings are not PPE.

Takeaways

As the COVID-19 situation continues to evolve, we expect to see changes in policies and legislation in the coming months. Right now, employers can no longer require employees to wear a face mask except in certain settings; however, workers are still encouraged to wear masks to protect themselves and others around them. Keep in mind that although mask restrictions have been lifted, employers are still subject to Cal/OSHA’s Emergency Temporary Standards. Employers should also check to determine whether their county or city has more restrictive guidelines. 

To keep up with the ever-evolving employment laws regarding the COVID-19 situation, employers should consult with employment attorneys. If you need assistance with a face mask policy or other employment issues, please contact Hackler Flynn & Associates.

DISCLAIMER: Content within this post should not be considered legal advice and is for informational purposes only. Communications made through this post do not create an attorney-client relationship. Hackler Flynn & Associates is not responsible for any content that you may access from third-party resources that may be accessed through or linked to this post.  Hackler Flynn & Associates is only licensed to practice in California.