The great workplace mask debate

Posted July 17, 2020

The CDC, OSHA, EEOC and other agencies have chimed in on the uses of masks in the workplace. Some members of the public are also rather vocal about their views on the subject outside the workplace. Where does that leave employers? Are they required to mandate mask use of all employees? What are the possible repercussions if they don’t?

Public health agencies continue to indicate that the wearing of masks can be a strong deterrent of spreading COVID-19, along with social distancing and enhanced cleaning (of both people and surfaces). In workplaces where employee jobs are such that distancing can be challenging, masks can play an even more prominent role in curbing the infection rate.

To further complicate matters, some jobs are not performed at a particular workplace, but rather are done out “in the field.” Work may be often done at a customer’s site, for example. In those situations, employees may have the risk of community exposure, which employers may have a greater challenge in controlling.

While OSHA does not specifically mandate that employees wear masks, employers need to provide work and a workplace free from recognized hazards. COVID-19 is a recognized hazard. OSHA has seen an increase in employee complaints regarding workplace safety from COVID-19. Therefore, if employers fail to institute steps to protect employees, including mask requirements, employees could claim that the workplace is not safe.

Even if you do require all employees to wear masks, there’s a chance that at least one employee will ask to be excused from the requirement, likely citing a condition that makes mask wearing unhealthy. This is generally seen as a request for a reasonable accommodation under the Americans with Disabilities Act (ADA), triggering your obligation to engage in an interactive process with the employee.

As part of this process, you may request reasonable medical documentation from the employee of the limitation/condition. Hopefully, the employee won’t show you a mask exemption card, as the U.S. Department of Justice has indicated that such cards are fraudulent. If the employee does not provide medical documentation, the action could be seen as closing down the interactive process, which could risk the employee losing his or her ADA protections.

Reasonable accommodation from mask wearing might involve having the employee work in a separated location or perhaps offering a face shield or the option of working from home. No one-size-fits-all solution is applicable; the situation needs to be addressed on its own merits.

Therefore, employers need to evaluate the risks of not mandating the use of masks, keeping in mind state and local mask orders, as they may increase to help stem the surge of infections in certain areas. Employers also need to keep an eye on the ever-changing science as research continues. A workplace mask mandate could be met with dislike, as the U.S. is not a mask-wearing culture. Some cultures don’t wear shoes, but in America, business generally requires shoes. In some cases, it’s might be a matter of perspective, but safety must be considered.

This article was written by Darlene Clabault of J. J. Keller & Associates, Inc.