As Covid-19 continues to impact the country and businesses, questions keep popping up around what employers are allowed to mandate in terms of masks, since there has been, to date since the Delta variant became prevalent in any case, a lack of regulations or executive orders dictating mask policy to private companies.
Currently, most businesses are taking it upon themselves to institute policies around employees wearing masks and Covid vaccination requirements. Covid in the workplace continues to be a major concern for business owners as they remain potentially liable (from employees, clients and customers) for instances where an individual contracts the virus from contact with the business and the business was negligent in not taking reasonable steps to prevent the spread of the virus.
Can Your Employer Require You To Wear A Mask At Work?
Yes, in almost all cases your employer can require you to wear a mask at work. The Occupational Safety and Health Act (OSHA) covers the vast majority of private employers and under the workplace OSHA requirements and regulations businesses must determine if the workplace exposes employees to hazards that justify the use of protective equipment - in this case masks. So, simply put, if an employer determines that the operations of the business (waiting on customers, helping walk-in clients, etc) expose employees to a risk of contracting Covid, under the OSHA regulations they are allowed to require employees to wear masks at work.
What About VA Mask Mandate Rules?
There have been a lot of questions and a lot of uncertainty from individuals and businesses in Virginia as the Delta variant of Covid continues to spread. In what situations, if any, Is it mandatory to wear masks in VA? Currently, Virginia has removed most of its mask mandates, the major one at this point being that K-12 schools (public and private) must require all individuals aged two and older to wear masks when indoors, regardless of vaccination status.
Virginia is advising that individuals and businesses follow the Centers for Disease Control (CDC) guidance on masks. There is a big focus on unvaccinated individuals both in VA and nationwide. The current guidance from the CDC, and the Virginia Department of Health, is if you are fully vaccinated wear a mask when you are in an area of substantial or high transmission (meaning the spread of Covid is happening more often).
If you are unvaccinated, or not fully vaccinated, you should wear a mask in all indoor settings, crowded outdoor settings and practice social distancing. This is recommended for all individuals over two years old. While this isn’t a mandatory requirement in VA at this point, it does have implications on businesses when they consider what type of policy they should implement around mask requirements. As previously mentioned, businesses have obligations under OSHA to protect employees and take the necessary steps to do so. In many cases employers are not mandating vaccinations and do not know the vaccination status of employees, so in order to protect employees, limit potential exposure and limit liability on the business, requiring employees to wear masks becomes company policy.
However, at this time, outside of the K-12 school setting Virginia is not mandating many mask requirements, leaving those decisions up to the discretion of business owners. This is something to stay on top of though, since as we saw in 2020, mandates could be implemented at any time.
Virginia businesses should be carefully watching for mask mandates, regulations and orders that may come into effect and require Covid compliance. Virginia is one of a handful of states that has a state level workplace safety agency - employers may be familiar with the Virginia Emergency Temporary Standard (Virginia ETS) that was implemented in 2020 and placed a variety of restrictions and mandates on businesses of all sizes and were the first state level Covid-19 workplace safety rules in the country. These laws and regulations can be fast developing, confusing and difficult to implement in practice. Enforcement is an area of particular concern for businesses when it comes to Covid requirements on companies, and specifically, determining who can issue citations for violations and who can’t - the Virginia Department of Labor and Industry can, the CDC can’t. What this means for business owners is they need to weed through all the recommendations, requirements, regulations and laws to understand what’s enforceable, what’s not and what to make a priority in terms of compliance in their business. Generally speaking the focus should be on complying with any state level rules first.
How Does the Americans with Disabilities Act Factor In?
The Americans with Disabilities Act (ADA) prohibits employers from discriminating against employees with disabilities. There are implications for employers under this and how they handle Covid precautions with employees. Business owners need to make sure that any policies, masks or otherwise, treat all employees the same. Be mindful that certain employees may have a disability under the ADA that could require an accommodation to not wear a mask, such as people with asthma, COPD or respiratory issues, individuals with PTSD, claustrophobia or anxiety.
Can Employers Demand or Require That Employees Do Not Wear A Mask?
Technically, yes, but doing so would have to be done in a situation where a mask would not be necessary to protect the health and safety of employees. Employers would need to carefully consider implementing an unmasking policy for employees. For starters, under the current guidance and OSHA regulations such a requirement could only apply to vaccinated employees - requiring any unvaccinated employees to unmask would likely be neglecting the obligation to keep employees from being exposed to unnecessary workplace risks.
If an employer was to put in place an unmasking policy and require employees to take them off there are some considerations to that should be kept in mind (this is not an exhaustive list):
- Don’t guess about vaccination status, requiring unvaccinated employees to unmask probably isn't going to fly, so businesses should know who is and who isn’t vaccinated if they are going to have an unmasking policy.
- Remind employees not to tease or harass someone about their vaccination status (it will become clear who isn’t vaccinated if an unmasking policy is put in place), doing so will open the business up to a hostile work environment claim.
- Employees may have protected reasons for not wanting to take off a mask - medical and religious for example, and the ADA will come into play here as well, someone may have a disability that requires them to wear a mask in public.
Navigating the Covid issues will probably be top of mind for employers for the foreseeable future, many of these regulations and laws could stick around and have provisions for extensions. Employers need to carefully consider their options and policies in order to protect their employees and limit any unnecessary risk exposure on the business.
Have questions about Covid-19 mask policies or employee policies in, or want to discuss any legal or risk management questions? Contact us to schedule a free consultation.