Employers will continue having to address concerns related to COVID-19 in the workplace as far into the future as one can predict. Of immediate concern to Employers is curtailing the spread of COVID-19 in the workplace. One tool Employers can use to address the spread of COVID-19 is the use of individual face masks. However, how Employers address the use of face masks by employees is far from straight forward, as guidance from federal, state and local governments agencies varies widely. The federal government maintains that the use of face masks in the workplace is voluntary and individuals can choose whether to wear a face mask. However, many states, in large part relying on guidance from the Center for Disease Control and Prevention (CDC), have mandated the use of face masks. The varying rules have impacted individual and public expectations regarding the use of face masks in the workplace and in public places at large. Unfortunately, the CDC’s guidance has only added to the confusion.
Initially, the CDC discouraged the use of individual face masks, however, in April, the CDC changed its guidance and stated that individuals should wear face coverings when near others. It is also important that Employers look at city/local laws/rules to ensure they are in compliance with any such mandates. Furthermore, even if there are no government requirements, there might be requirements imposed by property owners that Employers must also comply with and integrate into their plans. Finally, Employers must understand that face masks may be required for the type of work in which their employees are engaged, e.g., restaurant workers may be required to wear masks even if other workers are not. Regardless of the confusion, Employers must decide whether to require the use of face masks in the workplace. Below are some considerations intended to assist Employers in making the proper decision.
The Society for Human Resource Management (SHRM) conducted a survey of HR professionals and determined that 86 percent required or planned to require the use of face masks at work, and 80 percent of that group planned to provide employees with face masks. If Employers choose to require face masks, they must consider that certain employees may have existing health issues that may be negatively impacted by using a face mask. Employers can look to alternatives such as providing a work space that is isolated from others for those employees with health concerns. That said, subject to any health issues, Employers can require employees to wear face masks, even if employees don’t agree. Moreover, employers can ban employees’ use of face masks that include any offensive language, symbols, etc. – in other words, the face masks are subject to an Employers’ related policies.
The Occupational Safety and Health Administration (OSHA) has also provided guidance that includes alternatives to using face masks. OSHA has also made it clear that because face masks are meant to protect others and not the wearer, the face masks are not considered personal protective equipment (PPE) and are thus not subject to federal requirements. It is important that Employers complete an assessment of each of their workplace(s) and position(s) to ensure compliance with OSHA requirements. If there are no OSHA requirements, and Employers are following state and local laws/rules on face masks, their programs should be in compliance with law.
Employers should also consider that requiring or encouraging the use of face masks will positively impact employees’ comfort level while in the workplace. This in turn will likely boost morale among workers and encourage workers confidence upon their return to the workplace.
Employers must also address the proper use and care of face masks to ensure their effectiveness. According to the CDC, face masks should be washed after each use. Face masks can be properly cleaned by washing them in a washing machine, or by soaking in bleach for five minutes. Additionally, face masks should be dried on a high setting or air-dried in the sun.
Finally, Employers should provide employees with guidance on how to properly wear face masks to ensure effectiveness. The CDC has stated that individuals should thoroughly wash their hands before putting on the face mask, and that the face mask should cover the nose and mouth fitting snugly against the sides of the face. Furthermore, individuals should be sure that they can breathe easily.
The attorneys in Butler Snow’s Labor and Employment practice group can assist with any questions related to COVID-19 policies in the workplace. Find more about the practice by clicking here.
 For this article the use of “face masks” refers to the use of cloth face masks recommended by the CDC.
 Employers are not required to provide face masks and train workers in their proper use. However, employers must provide training on the use of surgical masks and respirators that protect workers from exposure to infections or toxic substances at hospitals, construction sites and other settings, which are considered PPE under federal regulations.