Can I force my employees to wear face masks?

As a general matter, an employer can require an employee to wear a face mask. Particularly as a preventative measure in the spread of COVID-19. However, there are exemptions, as outlined below. To avoid legal troubles down the road, it is best if an employer has a written ‘face mask’ policy. The policy should be specific (reviewed by your attorney, if possible) and implemented consistently across the business. Make sure the face mask policy considers the requirements of the CDC, OSHA, EEOC, and your state and local government policies.  Also, be sure to update the policy as necessary as government recommendations change.

What to include in an employee ‘face mask’ policy

  • An explanation of COVID-19 with facts.  Describe how wearing a mask would help in reducing the spread of the virus.
  • Instructions on how to wear the mask 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. explain 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.

Exemptions to wearing a face mask

There are a few instances where an employee may reasonably refuse to wear a face mask.  These include:

  1. The mask interferes with the performance of the employee’s job.  An example is 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 indicate that respirators can be a hazard. An example is 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. See the ADA.  An example is 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 have a dialog with the employee to determine the best accommodation.  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.

Takeaways

Employers can require employees to wear a face mask.  To mitigate any potential legal issues, have a ‘face mask’ policy in place, and keep it updated.  It will protect employers and employees.  If an employee falls under one of the exemptions, talk to your employee regarding the best accommodation.

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.

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