In Episode 132 of The Workplace podcast, CalChamber Executive Vice President and General Counsel Erika Frank and employment law expert Jennifer Shaw discuss COVID-19 workplace mask mandates.
There’s been much talk lately about COVID-19 vaccine mandates and whether to continue wearing masks at home and in the workplace, Frank says. To help clear up any confusion, Frank asks Shaw whether employers can still require that employees wear face coverings at work.
Can Employees Be Required to Wear Masks?
Shaw says that employers can indeed still require that masks be worn at work. Similar to requiring that employees wash their hands after going to the restroom and returning to the restaurant, employers can set reasonable rules such as wearing a mask at work, provided that accommodations be offered to those who cannot wear a mask due to a disability or religious belief.
In the last two months or so, as Delta variant cases have been rising, local health departments throughout California have been passing new mask mandates that require employees to wear a face covering at work regardless of vaccination status, Frank says. This is a detour from the California Division of Occupational Safety and Health (Cal/OSHA) mask guidelines, which allow vaccinated workers to be at a worksite without a mask.
Local health departments are doing this because the COVID-19 vaccine is not 100% effective and breakthrough cases can still occur where vaccinated individuals can still get sick and spread the virus, Shaw explains. This phenomenon is similar to what is seen with a flu vaccine.
The downside to establishing or keeping a mask mandate in place is that you will have to deal with grumpy employees, but the upside is that you will help control the spread of COVID-19 and keep your workplace safe, allowing production to continue, Frank points out.
If a worker states that they cannot wear a mask and presents a doctor’s note, Shaw recommends that the employer look over the note carefully. Does the doctor’s note establish that the person cannot wear a mask?
Such a note would be very rare, but there are valid medical conditions that could make it hard to wear a mask, such as emphysema or chronic obstructive pulmonary disease (COPD), she says.
If someone cannot get vaccinated, the best accommodation an employer can offer is masking and testing. Although some employers may continue to offer telework arrangements, not all jobs can be done remotely.
Many people cannot perform all of their essential job functions from home, Shaw says. Some employers are saying that they need to get back to business and need employees at the worksite or office. So if an accommodation cannot be made, the employer may tell that worker that they can no longer work for the company.
Paying for Testing, Face Masks
If an employer requires that an employee be tested for COVID-19, the employer will need to pay for the testing and for the time the employee spent on taking the test, Shaw says.
If face coverings are required, the employer will also need to provide face masks, she adds. Employees may bring their own face masks if the masks meet health requirements. Gaiters and shields, for example, would not meet requirements.
Making the decision to provide face masks, however, is a best practice, Shaw says. This makes it easy for an employer to provide face masks to guests or to employees who forgot to bring their masks from home.