Hey Compliance Warriors!
It seems like every day we see the divide widen between people who think they don’t need masks, and people who support wearing them. Of course, this is decided upon by cities, states, and so on, but businesses also have the right to choose how they handle things. As long as they do so with care, which is what the proceeding article entails. Read on…
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Article Via: icemiller.com
“With government and public health officials increasingly focused on masks/face coverings as a key mitigation strategy to address the COVID-19 pandemic, employers across the country are grappling with a complicated set of legal, business, and employee relations concerns related to mandating the use masks/face coverings by employees and customers. Making matters more complicated is the prevalence of disinformation regarding legal standards relating to masking mandates, the fact that rules vary significantly from jurisdiction to jurisdiction, and the reality that key public health guidance on masks has changed dramatically since the early days of the pandemic.
While the particular legal and employee relations issues employers face vary from workplace to workplace and jurisdiction to jurisdiction, there are a number of common issues our clients are facing on a consistent basis. The following are five key questions all employers should be prepared to address.
Why Use Masks at All?
Before we get into the legal issues, a threshold question is the underlying rationale for wearing masks/face coverings at all. While there now appears to be a consensus among medical and scientific experts—and politicians from both sides of the aisle—that masks and face coverings can play a significant role in reducing the spread of the novel coronavirus; that was not always the case. In the early days of the epidemic, the World Health Organization (WHO), the U.S. Centers for Disease Control (CDC) and other public health officials recommended that members of the public not wear facemasks. The rationale for this position was: (1) a lack of clear evidence that the use of non-medical grade face coverings helped prevent transmission; (2) a concern that the public would purchase and hoard masks and respirators that were needed by health care workers (and were in short supply); and/or (3) a concern that the use of masks would give the public a false sense of security and result in disregarding other key social distancing measures.
Since then, the WHO, CDC, and public health experts have reversed course due to significant new scientific evidence that wearing face coverings reduces the likelihood the wearer will transmit the virus to those in proximity, the wide availability of non-medical cloth face coverings for use by the public, and a lack of evidence that wearing masks encourages members of the public to disregard social distancing measures. (Relevant CDC guidance concerning the scientific basis for masks use is available at https://www.cdc.gov/coronavirus/2019-ncov/prevent-getting-sick/cloth-face-cover-guidance.html.)
In addressing the concerns of employees and/or customers who object to wearing masks, it may be helpful to acknowledge the shifting guidance on the use of masks, while emphasizing the growing consensus. Notably, while businesses may reasonably be concerned about negative reactions from employees and customers to masking requirements, polling consistently shows that an overwhelming majority of Americans are regularly wearing masks in public settings. See https://news.gallup.com/poll/313463/mask-worry-lack-social-distancing.aspx. In other words, caving in to the objections of employees or customers who oppose mask use may cause more harm to your business—and workplace environment—than holding firm against the complaints of a vociferous minority.
May We Require Employees to Wear Masks?
As a general rule, yes. The EEOC has stated that employers may require employees to wear masks and gloves to help prevent COVID-19 infection. That said, employees with disabilities or religious beliefs that conflict with masking requirements may be entitled to a reasonable accommodation under the Americans with Disabilities Act (ADA) (disability) or Title VII of the Civil Rights Act of 1964 (religion). The EEOC notes that, “the employer should discuss the request and provide the modification or an alternative if feasible and not an undue hardship on the operation of the employer’s business under the ADA or Title VII.” (See Question G.2 at https://www.eeoc.gov/wysk/what-you-should-know-about-covid-19-and-ada-rehabilitation-act-and-other-eeo-laws.) An example of a potential accommodation might be allowing the employee to wear a face shield instead of a mask or temporarily reassigning him or her to a work area where the employee will not be in close contact with coworkers.
Given the prevalence of disinformation to the contrary, it is crucial to note that mere existence of a disability or religious objection does not provide a blanket exclusion from a masking mandate under the ADA or any other federal law or regulation. Nor does HIPAA (the Health Insurance Portability and Accountability Act of 1996) prevent employers from requesting more information when an employee raises health concerns. Notably, HIPAA, which protects the privacy of certain health information, generally does not apply to communications between covered employers and their employees (or customers) concerning accommodation requests and indeed does not apply whatsoever to most businesses.
In addition to considering federal law, it is important for employers to consult with counsel about the impact of state and local law regarding the application of masking policies and/or mandates. It is possible that state or local law may contain provisions that are more restrictive than federal law—or even provisions that conflict with federal accommodation requirements.
May We Require Customers to Wear Masks?
Again, the general answer here is yes. The U.S. Department of Justice (DOJ), which enforces the ADA as it applies to provision of public accommodations, has recently commented on the existence of fraudulent cards and other materials bearing the DOJ’s seal that purport to exempt carriers from facemask requirements pursuant to the ADA. In addition to disavowing such fraudulent documents, the DOJ noted that, “[t]he ADA does not provide a blanket exemption to people with disabilities from complying with legitimate safety requirements necessary for safe operations.” See https://www.justice.gov/opa/pr/department-justice-warns-inaccurate-flyers-and-postings-regarding-use-face-masks-and. That said, as in the employment context, the ADA may require a business to provide a customer with a reasonable accommodation in relation to the masking mandate. Such a request should be considered on a case-by –case basis. And, again, businesses should be aware of state and local requirements that may supplement or conflict with federal law.
Do Federal OSHA Standards Require Employees to Wear Masks?
Generally speaking, no, though there are circumstances in which respirators (such as N-95 masks) or medical-grade surgical masks are required as Personal Protective Equipment (PPE) for certain classes of employees, such as health care workers or construction workers, in order to protect against a variety of hazards including, but not necessarily limited to, the novel coronavirus. Cloth face coverings and disposable (non-medical grade) masks, which are intended to prevent the wearer from spreading the virus to others, are not considered mandatory PPE under OSHA standards, though current OSHA guidance strongly encourages their use in the workplace. (Additional informal guidance is available from federal OSHA at https://www.osha.gov/SLTC/covid-19/covid-19-faq.html.)
My Employees Are Represented by a Union. Do I Have to Bargain with the Union Before Implementing a Masking Mandate or Policy?
Maybe. Under the National Labor Relations Act (NLRA), which covers most private-sector employers, an employer is obligated to bargain with its employees’ exclusive bargaining representative before making changes to terms or conditions of employment. However, depending on the language of your collective bargaining agreement, management may have the ability to issue new safety rules without bargaining and/or change rules to comply with new legal obligations. An employer also may need to bargain over the “effects” of implementing a policy in compliance with the law, even if it has no duty to bargain over the decision to implement a masking requirement. For example, a union may request bargaining over whether the employer will pay for masks/face coverings, what specific kinds of masks/face coverings will be required, etc. Unionized employers should consult with labor counsel regarding their specific bargaining obligations and should consider the benefits of proactively communicating with union officials regarding the implementation of COVID-19-related safety measures. Union buy-in can go a long way towards smoothing out the implementation process and reducing the need for enforcement through disciplinary means.”
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