Part 2 of a series featuring our video Rules of the Road: Return to Work in the Time of COVID-19. 

Who would have believed that months into this global pandemic, after the innumerable and unspeakable loss to human life, to global economies, and to our own sense of selves and normalcy – that the relatively straightforward issue of whether to wear a mask to curb the spread of this virus would remain such a hot button topic.  And yet, here we are.

The overwhelming science – yes, science – reported and confirmed by scientists, physicians, and leading health experts across the globe – is that wearing a mask, along with social distancing and frequent handwashing, is probably one of the most important measures each and every person can take.

So as employers, who have a major role to play in this next phase, begin to develop and implement plans for reopening and staff return to the workplace, they should be mindful of their rights and responsibilities around mask-wearing.  What follows is some helpful information on current health findings regarding the efficacy of wearing masks, examples that typify the sorts of state-imposed obligations regarding masks, employer rights and tips on how to approach mask-wearing in the workplace, and a discussion of key mask-related Americans with Disabilities Act (“ADA”) accessibility issues for employers operating public accommodations.

CDC and Health Guidance

As we are all now certainly aware, the Centers for Disease Control (“CDC”) has called on all Americans to wear masks in order to help stop the spread of COVID-19.  On July 14, 2020, the CDC published an editorial piece in the Journal of the American Medical Association (“JAMA”), which discussed the latest science on the efficacy of wearing masks to curb the spread.

As discussed in a press release, studies have shown that “adherence to universal masking policies reduced [COVID-19] transmission.”  One of the studies revolved around two particular hair stylists who tested positive for COVID-19 and continued to see clients for several days while symptomatic.  The salon where they worked “had a policy requiring both stylists and their clients to wear face coverings, consistent with the local government ordinance.”  At the salon, 98% of clients wore a face covering, as did the stylists who were studied.  The study found that 90 days after each clients’ appointment, “none of the interviewed customers [84% of the relevant customers] developed [COVID-19] symptoms … [and] [a]mong [the] customers who volunteered to be tested [48% of the relevant customers], all [] tested negative for the virus that causes COVID-19.” The CDC provided that the study “adds to a growing body of evidence that cloth face coverings provide source control – that is, they help prevent the person wearing the mask from spreading COVID-19 to others.  The main protection individuals gain from masking occurs when others in their communities also wear face coverings.”

Based on the CDC’s recommendations and the latest scientific findings, it is clear that wearing masks and face coverings can be an incredibly effective tool to help prevent the spread of COVID-19.

Employer Responsibilities Regarding Masks

Various states and municipalities have implemented requirements for businesses to impose mask policies for both staff and patrons.  Note that states and municipalities often provide different industry-specific requirements for return-to-work safety measures and procedures.  Some examples of state workplace mask requirements include:

• In California, face masks are generally required for employees engaged in work, whether at the workplace or while performing work off-site, unless certain exemptions apply. California employers must provide and ensure workers use all required protective equipment, including masks.  Employers must provide, at no cost to workers, safeguards, such as face coverings, when such safeguards are reasonably necessary to render the work and worksite safe and healthful.  Employees are required to wear masks when interacting with a member of the public, working in any space that is visited by members of the public, working in or walking through common areas, or in any room where other people are present and social distancing cannot be maintained.  Employers must take reasonable measures to remind workers that they should use face coverings.  Certain exceptions apply, in relevant part, including to those with medical conditions, the hearing impaired, and those to whom mask-wearing would pose a safety risk.
• In New York, face coverings are required both in and out of the workplace for those who are able to medically tolerate a face covering when in public and unable to maintain social distancing. Employers must advise workers and visitors to wear face coverings in common areas including elevators, lobbies, and when moving about the office.  Further, employers must provide face coverings to employees and visitors as needed.  Masks must be worn in the workplace whenever social distancing of six feet is not possible.  Additionally, employers are required to post signage about properly storing, and when necessary, discarding personal protective equipment, including face coverings.  Employers must train employees on how to adequately don, doff, clean, and discard personal protective equipment, including face coverings.
• Similarly, Illinois requires that employers ensure that employees wear face coverings when six feet of social distancing is not possible. Illinois employers are required to provide face coverings to all employees who cannot socially distance.  It is recommended that Illinois employers require visitors and vendors to also wear face coverings and to post signage regarding face covering requirements at office entrances.  All workplace safety policies, including the requirement to wear face coverings, “must be applied and enforced equally to all employees, except for those who have informed their employer that they have a medical reason or disability that prevents them from wearing a face covering.”

Employer Rights Regarding Masks

Employers in the hospitality, retail, and other customer-facing industries should be aware that they have certain rights when it comes to enforcing state and local mask requirements.  In the interest of ensuring the health and safety of their workers, and avoiding any government-imposed penalties, employers can take certain steps to enforce mask requirements at their businesses.  Specifically, employers should post clear signage and even pop-ups on their website to underscore the expectation that everyone that is on the premises wear a mask.  Some employers may even consider handing out masks as a branding opportunity.  Employers may also want to have a worker assigned to stay around the entrance of the premises to remind customers of the employer’s mask-wearing policy and provide masks to visitors.  It is best to bestow a trained manager with this responsibility, in the event that they encounter resistance from visitors or customers.

In the event that a customer refuses to or cannot comply with the mask requirement, employers should be prepared with alternative means to serve the customer.  This can include offering curbside pick-up service, or even handing out coupons and promotions for online shopping instead.

Employers should ensure that staff is trained to immediately call a manager, and potentially law enforcement, for help in the event that a mask-related incident escalates.  Ensure that staff is trained to understand that they will never be asked to put themselves in harm’s way to enforce a mask policy.  Managers should be trained on this important point as well.  No matter what approach employers choose to take, they should ensure that they maintain security cameras to document any potential incidents, and to help mitigate the risk of or potentially defend a litigation.

Key Mask-Related ADA Accessibility Issues

As our colleagues recently reported, businesses should keep in mind some of the many accessibility issues that have sprung up in this era of the new normal.  Businesses that require customers to cover their faces as a safety measure when entering their physical locations in order to curb the spread must be aware of the ADA implications of such mandates.

While many businesses generally can, and currently do, maintain facially neutral policies of refusing service to a customer who refuses to wear a face mask, businesses must also consider that there may be situations where a customer cannot wear a mask due to a legitimate health reason, such as a respiratory condition that does not allow them to have their breathing restricted.  Lawsuits against businesses that require patrons to wear masks are a potentially ripe new area for litigation.  In order to minimize this risk, it is imperative that businesses be aware of the specific state and local rules in the jurisdictions in which they are operating that may create or limit their obligations, options or defenses to requiring masks in public accommodations.  These requirements often differ on how businesses should respond to individuals who cannot wear masks because of a disability or medical condition.

To address businesses’ obligations under Title III and state and local counterparts, and avoid legal risk, it is more important than ever that staff working in public accommodations are trained regarding accessibility policies and proper sensitivity and etiquette so that they know how to respond when a customer says that they are unable to wear a mask, or require an accommodation.

Further, businesses should modify their baseline policies and practices accordingly in order to remain in compliance with state/local orders that may impose additional restrictions or obligations.  Additionally, businesses must remember that under Title III, businesses have an obligation to provide auxiliary aids and services necessary to achieve effective communication for individuals with disabilities.  Due to the current need for employees and patrons to wear masks, businesses may consider the need for alternative methods of effective communication for individuals who are hard of hearing and ordinarily rely on lip reading.  To address this obligation, businesses should consider providing disposable pens and pads, markers and dry-erase boards sanitized between every use, or methods of electronic communication, and disinfecting any shared devices between use.  Finally, to the extent that extra signage is added to help inform patrons of safety rules, like the requirement to wear masks, such information must be communicated in an alternative accessible format for individuals who are blind.

All of these measures, properly adopted and lead by the corporate community, will have a profound and enduring impact on when and how we come out of this period.

This is not controversial.  This is science.

Mask on.