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Law360 (April 21, 2020, 5:06 PM EDT )
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| Alka Ramchandani-Raj |
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| Devjani Mishra |
Gov. Andrew Cuomo issued an executive order[1] requiring "all essential businesses or entities [to provide] any employees who are present in the workplace [with face coverings] when in direct contact with customers or members of the public," and specifying that businesses must provide such face coverings at their expense. This order became effective Wednesday, April 15 at 8 p.m.
New York thus joins New Jersey,[2] Washington. D.C.,[3] Los Angeles County and city,[4] Miami-Dade County and numerous other localities in requiring or recommending the use of masks or other face coverings in the workplace and elsewhere in public. This trend is expected to continue in light of evolving recommendations from the Centers for Disease Control and Prevention.
The following are answers to some of the most common employer questions in this developing area.
What is a mask and what is a face covering?
In interpreting these orders, it is important to distinguish between different types of masks and face coverings.
A mask is usually defined in workspaces as either (1) a filtering respirator such as an N95 or K95 or (2) a specialized medical grade or surgical mask. Given continuing shortages and supply challenges, both types of masks should generally be reserved for health care providers, first responders and essential workers who need to fulfil task-specific Occupational Safety and Health Administration and workplace safety requirements related to respiratory protection.
As manufacturing ramps up, surgical masks may become more easily obtainable by employers in large quantities, and they typically would meet the requirements of the various orders that have issued to date, but priority should be given to the health care and first responder systems.
In contrast, a face covering is a cloth, bandana or other type of material that covers an employee's mouth and nose. The CDC lists five criteria[5] for cloth face coverings, which should:
- Fit snugly but comfortably against the side of the face;
- Be secured with ties or ear loops;
- Include multiple layers of fabric;
- Allow for breathing without restriction; and
- Be able to be laundered and machine-dried without damage or change to shape.
Other types of improvised coverings, such as a scarf or single-cloth layer that does not meet the above criteria, would not be adequate under most orders mandating face coverings. Single-use paper-based face coverings may be an option, but their effectiveness varies and the CDC has not issued any specific recommendations with regard to their use.
Other types of specialty or industrial coverings (e.g., barrier full-face shields) should be reserved for their normal uses and employers are not expected to make these available to workers who would not regularly be using them.
When did the guidance on masks and face coverings change?
Through March, the CDC and other U.S. authorities were not recommending the widespread use of face coverings. On April 3, however, the CDC changed its prior guidance,[6] recommending that individuals should wear cloth face coverings in public settings where social distancing measures and other hygiene practices are difficult to maintain.
On April 9, the CDC amplified this guidance with respect to essential employees (generally, those who have been exempted from stay-home or shelter-in-place orders) who may have been exposed to COVID-19, recommending[7] that such employees wear face coverings at all times while in the workplace for at least 14 days, in addition to other precautionary measures.
Does a face covering prevent the wearer from contracting COVID-19?
A face covering is not necessarily meant to protect the wearer from others. Rather, the intention is to prevent a possibly asymptomatic person from unknowingly transmitting the virus to others. As the CDC has cautioned, face coverings are just one protective measure, and not a substitute for social distancing, personal hygiene and additional cleaning protocols.
In general, where an employer becomes aware that a worker is actively symptomatic for COVID-19, steps should be taken to exclude that worker from the workplace as well as to identify others who may have been exposed, and to develop an appropriate return-to-work plan when the worker's symptoms have resolved.
Note that under the Los Angeles city order, and according to CDC guidance,[8] employees of essential services and businesses who are COVID-19-positive but remain asymptomatic and are able to work may do so with face coverings and assuming that other protective measures are being taken.
Who pays for face coverings?
New York specifically requires employers to provide employees in essential, customer-facing roles with face coverings at the employer's expense. Similarly, New Jersey requires restaurants, dining establishments and other food service businesses, as well as various public employers, to provide their employees with face coverings and gloves at the business's expense. Other jurisdictions, such as Los Angeles, do not specify who should provide or pay for face coverings.
However, the employer may have that obligation under general state or local laws obligating employers to provide or pay for equipment like face coverings. As noted, Cuomo's order specifically requires employers to pay for face coverings for essential, customer-facing employees.
In contrast, OSHA and the U.S. Department of Labor have not provided guidance on whether face coverings must be provided or paid for by the employer. In other states, employers should review wage and hour and workplace safety regulations to determine if they are obligated to pay for face coverings and other items recommended for COVID-19 protection.
Is training required?
Employers should provide employees with instructions and/or training on how to wear, maintain and clean their face coverings. Employees need to know that they must securely cover their noses and mouths, should not reverse, move or remove their face coverings unnecessarily in the workplace, should not share their face coverings with others, and must keep them clean.
Single-use face coverings must be properly and safely discarded into trash receptacles after each use. Employers that opt to provide employees with single-use coverings must provide a sufficient supply to enable employees to replace them as needed, which may be more than once a day.
Who does the cleaning and maintenance, and who pays for it?
As the CDC states, multiple-use face coverings should be laundered and machine dried without damage or change to the shape, generally at least once a day (as the Los Angeles city order specifies) or more often if contamination occurs. Regardless of whether face coverings are government-mandated, required by employer policy or merely recommended, proper cleaning and maintenance are critical to ensure that employees do not reuse dirty or contaminated face coverings, which pose a hazard to other employees as well as customers.
In principle, responsibility for cleaning expenses could vary based on state uniform maintenance rules. For example, under New York State's minimum wage orders, most employers have the option to either launder uniforms or to pay the employee a set premium to cover cleaning expenses.[9]
In contrast, hospitality employers in New York may apply a wash-and-wear exception for items that can be routinely washed along with an employee's ordinary clothes, and do not have to pay the employee a premium.[10] An employer seeking to rely on this exception will need to furnish an employee with a sufficient number of face coverings to correspond to the employee's full workweek, noting that face coverings may need to be changed more than once a day, and will need to supply face coverings that will not be damaged by normal laundering.
In the absence of a wash-and-wear exception, or if there are questions about whether employees will be able to manage regular maintenance, employers are strongly advised to either provide employees with a cleaning subsidy or set up an in-house cleaning program at the employer's expense.
In the latter case, employees should understand that they may not get their own face coverings back after cleaning, and may need to carry additional coverings with them to wear during their commute home. Whatever approach employers take, they must ensure that their program complies with all locally applicable wage and hour requirements.
Where can employers obtain face coverings for their employees? What if they're unavailable?
This is perhaps the most pressing question related to face coverings, and the least easily answered given ongoing shortages of protective equipment. Where states and localities are mandating face coverings, employers should be making and documenting good faith efforts to secure face coverings as a required element of doing business.
The CDC's website includes do-it-yourself options for making one's own face covering using materials such as T-shirts, bandanas and hair ties, and numerous similar tutorials can be found online. Employers should consider providing employees with such instructions and materials (at the employer's expense) as an interim measure while they continue to source more standard face coverings. In such cases, the employee's time spent making face coverings is likely to be compensable and the employer should factor that expense into its planning.
What if employees want to use their own face coverings?
This may be a good option where the employer is having difficulty sourcing face coverings. Employees who are using their own face coverings must make sure that these coverings meet the CDC's recommendations and that they clean them correctly.
Employers should provide employees a reimbursement or subsidy for material and cleaning costs. Given the proliferation of novelty masks and materials, employees should be cautioned that DIY face coverings must be workplace-appropriate and cannot feature offensive images or content.
What if an employer has distributed face coverings, but an employee fails to bring it to work?
Because face coverings are considered protective equipment, the employee should not be permitted to work on-site until they are able to obtain a face covering.
What if an employee declines to wear a face covering for medical reasons?
Generally, employers should be providing training to employees at the time that face coverings are distributed or implemented, and the training process should include identification of any medical issues that could interfere with wearing face coverings, such as claustrophobia, asthma, chronic obstructive pulmonary disease or other conditions.
Employers are advised to engage in the interactive process with such employees as required by the Americans with Disabilities Act and similar state and local provisions. An employee who cannot breathe through a face covering should not be required to wear one, but may need to be temporarily removed from customer-facing responsibilities, provided with leave or accommodated in some other fashion.
What if an employee declines to wear a face covering for nonmedical reasons?
Employee objections should be evaluated in light of all of the relevant circumstances. For example, an employee may raise objections based on religious grounds, where their preexisting grooming or dress requirements conflict or interfere with prescribed face coverings. In such cases, the employer should engage in the interactive process as required by Title VII and similar state and local provisions.
Individuals have also raised legitimate bias concerns, such as where people of color wearing face coverings are wrongly suspected of criminal intent and activity. Employers should take steps to minimize this risk by sourcing face coverings that more clearly look like protective masks and by posting notices that employees are required to wear face coverings on-site.
Individuals may also object based on the fact that a face covering interferes with their ability to perform the job. Again, employers should assess this issue during the rollout process, identify cases where face coverings may inhibit job performance, and develop workarounds that do not compromise safety or performance.
Individuals who simply decline to wear face coverings, but do not raise a medical or otherwise protected objection, should not be permitted to work and may be disciplined for not following work requirements.
What are the penalties for noncompliance?
States and localities are imposing a variety of penalties for noncompliance, and local police are generally tasked with enforcement. In New Jersey, noncompliance will be prosecuted as disorderly conduct.
In the city of Los Angeles, failure to comply constitutes a misdemeanor subject to fines and/or imprisonment. In New York, fines and penalties may be imposed for violation of the Public Health Law.
What's next?
Face covering requirements are expanding and are likely to remain in place for the next several months. The CDC has also recommended face coverings as a protective measure for returning essential employees to work following COVID-19 exposure.
As such, employers should make reasonable efforts to source face coverings for essential workers, particularly those who interface with customers and others, and consider what other safety measures may be needed as employees transition back to on-site work in greater numbers.
Alka Ramchandani-Raj is of counsel at Littler Mendelson PC. She leads the firm's COVID-19 task force.
Devjani H. Mishra is a shareholder at the firm and a member of the task force.
The opinions expressed are those of the author(s) and do not necessarily reflect the views of the firm, its clients, or Portfolio Media Inc., or any of its or their respective affiliates. This article is for general information purposes and is not intended to be and should not be taken as legal advice.
[1] No. 202.16: Continuing Temporary Suspension and Modification of Laws Relating to the Disaster Emergency (April 12, 2020), available at https://www.governor.ny.gov/news/no-20216-continuing-temporary-suspension-and-modification-laws-relating-disaster-emergency.
[2] Executive Order No. 125, available at https://nj.gov/infobank/eo/056murphy/pdf/EO-125.pdf.
[3] Mayor's Order 2020-058 (April 8, 2020), available at https://mayor.dc.gov/sites/default/files/dc/sites/mayormb/release_content/attachments/MO%202020-58%20Social%20Distancing%20Protocols%20Required%20for%20Food%20Sellers%20and%20Req....pdf.
[4] Los Angeles Joins the Trend, as States and Localities Adopt Face Covering Requirements (April 9, 2020), available at https://www.littler.com/publication-press/publication/los-angeles-joins-trend-states-and-localities-adopt-face-covering.
[5] How to Wear a Cloth Face Covering (April 13, 2020), available at https://www.cdc.gov/coronavirus/2019-ncov/prevent-getting-sick/diy-cloth-face-coverings.html.
[6] Recommendations for Cloth Face Covers (April 3, 2020), available at https://www.cdc.gov/coronavirus/2019-ncov/prevent-getting-sick/cloth-face-cover.html.
[7] Interim Guidance (April 8, 2020), available at https://www.cdc.gov/coronavirus/2019-ncov/community/critical-workers/implementing-safety-practices.html.
[8] Implementing Safety Practices for Critical Infrastructure Workers Who May Have Had Exposure to a Person with Suspected or Confirmed COVID-19 (April 8, 2020), available at https://www.cdc.gov/coronavirus/2019-ncov/community/critical-workers/implementing-safety-practices.html.
[9] Minimum Wage Order for Miscellaneous Industries and Occupations, 12 N.Y.C.R.R Part 142-2.5(c), available here https://www.labor.ny.gov/formsdocs/wp/CR142.pdf.
[10] Hospitality Industry Minimum Wage Order, 12 N.Y.C.R.R. Part 146-1.7(b), available here https://www.labor.ny.gov/formsdocs/wp/CR146.pdf.
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