Face masks have been known to help slow the spread of COVID-19, making it an effective way to protect the employee, the wider workplace, and the public. As businesses begin to reopen, 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 may require and mandate the use of facemasks in the workplace, particularly as a preventative measure in the spread of COVID-19. In fact, both the U.S. Equal Employment Opportunity Commission (EEOC) has issued guidelines that indicate an employer may require employees to wear a face mask to reduce transmission.

Specifically in California, individuals must wear masks in several specified high-risk situations, including the following work scenarios (whether at the workplace or performing work off-site):

  1. Interacting in-person with any member of the public;
  2. Working in any space visited by members of the public, regardless of whether anyone from the public is present at the time; 
  3. Working in any space where food is prepared or packaged for sale or distribution to others; 
  4. Working in or walking through common areas, such as hallways, stairways, elevators, and parking facilities; 
  5. In any room or enclosed area where other people (except for members of the person’s own household or residence) are present when unable to physically distance.

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?

Although you can generally require your employees to wear a face mask, 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 for 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 for 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. Since COVID-19 is an ever-evolving situation, we also recommend you 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 New York must provide and pay for face coverings for employees in essential, public-facing roles. New Jersey food service businesses and certain public employers must provide and pay for face coverings and gloves. In Los Angeles, there is currently no specification on who should provide or pay for face coverings.

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. 

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

Employers can require employees to wear a face mask. To mitigate any potential legal issues, we recommend having a face mask policy in place and keeping it updated. Doing so will protect employers and employees. And if an employee falls under one of the exemptions, talk to your employee regarding the best accommodation.

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

Reopening Your Business – Playbook

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.

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