USA: Is a Workplace Face Mask Policy Right for Your Business?

Since the outbreak of COVID-19, wearing a face mask has become part of the daily routine for individuals across the globe. As businesses begin to reopen, in many countries amidst a continued influx of COVID-19 cases, both workers and visitors are required to wear face masks in the workplace to help protect employees and prevent the spread of the virus. The rules and recommendations regarding face masks are evolving rapidly, and implementing a workplace face mask policy comes with a myriad of issues to consider.

Here are just a few:

• If a jurisdiction requires/recommends the wearing of face masks in public, does this include in the workplace? Are workers required to wear face masks, even if they maintain social distance? Are there exceptions?
• What type of mask (cloth/surgical/respirator) is required/recommended, and what are the differences between masks?
• Are employers required to provide face masks to workers?
• Are workers who wear face masks also required to socially distance?
• Are there cleaning requirements for reusable masks?
• What steps should an employer take if a worker refuses to wear a face mask?

Unsurprisingly, employers have found face mask obligations quite confusing. An employer must stay up-to-date on face mask requirements and recommendations, as they change, on both the national and local level. For example, initially, the U.S. Centers for Disease Control and Prevention (CDC) and the White House did not encourage the wearing of face masks, but this recommendation changed in early April, after several studies provided evidence that “face coverings are one of the most powerful weapons we have to slow and stop the spread of the virus”. The Federal Government promotes wearing masks in public as a voluntary measure only, but, notwithstanding this, several states have mandated the use of masks and face coverings in certain industries.

In Ohio for instance, all employers must provide masks to their employees and require the employees to wear them, or provide written justification for not doing so. However, in Connecticut wearing a face mask is only required in workplaces where employees are unable to maintain “a safe social distance of approximately 6 feet”. In addition, the Occupational Safety and Health Administration (OSHA) has recently advised employers to encourage workers to wear cloth face coverings while at work. OSHA also recommends maintaining social distancing in the workplace, even when workers are wearing cloth face coverings.

In Germany, while it is mandatory to wear face masks in retail stores and when using public transportation, there is no official obligation for employers to require employees to wear face masks in the workplace. That said, an employer has a duty of “protection and care” for its employees, but the choice of which specific measures to implement is left to the employer, to the extent that these are suitable for maintaining the well-being of the employees and preventing the risk of infection.

Given the current state of the COVID-19 pandemic, it is likely that the employer can issue an order requiring masks to be worn in the workplace, although the works council must be involved in the employer’s decision. If the employer and the works council cannot agree to make wearing face masks compulsory, or should they fail to reach an agreement on other health protection measures, the responsibility will fall to the arbitration committee to decide, appropriately. Measures taken by the employer without the works council’s approval are not effective and can immediately be challenged in court. If no works council exists, the employer must at least inform the employees of the health hazards, as well as any protective measures in place, to counter the dangers posed by COVID-19.

In Australia, similar to the U.S., wearing face masks is voluntary on the national level. However, several states have adopted more stringent mandates. For example, the Victorian state government recently mandated the use of face masks in public spaces in the metropolitan area of Melbourne and Mitchell Shire, with particular emphasis on preventing the spread of COVID-19 in the workplace. Employers are advised to consider providing reusable cloth masks or single use surgical masks to employees in workspaces where physical distancing (more than 1.5 meters) is not possible. The fine for not wearing a face mask is $200.

Employers, regardless of jurisdiction, are advised to take necessary measures to protect the health and safety of their employees when re-opening, which may extend to the demand that employees wear face masks while at work. Other helpful measures include cleaning and disinfecting public spaces, workplaces, common areas and regularly touched surfaces (such as doorknobs), frequent handwashing and the use of hand sanitizer, avoiding contact with the face, nose or mouth and maintaining safe distances.

Jackson Lewis attorneys are available to assist you with these and other workplace issues. For more information, please contact John Sander (Principal) of Jackson Lewis at john.sander@jacksonlewis.com or visit www.jacksonlewis.com.

For more information please contact Joseph Granato, Communications Manager at L&E Global at joseph.granato@leglobal.org.