In this episode of The Workplace podcast, CalChamber Executive Vice President and General Counsel Erika Frank and employment law expert Jennifer Shaw discuss ways employers can ensure employees comply with state guidelines on masks and social distancing, and continue fostering a healthy workplace.
While wearing a mask in the workplace is not law, it is recommended by local and state authorities, such as the California Department of Public Health (CDPH), that employees wear masks at work and maintain a distance of six feet from one another. This guidance not only protects customers from the spread of COVID-19, but also helps keep employees healthy and safe in the workplace.
The guidance and orders issued by the CDPH and other government agencies, Shaw tells listeners, is the appropriate reasoning an employer needs to establish a mask and social distancing policy at work.
But what if, Frank asks, an employee is found not wearing a mask?
Shaw says that enforcing mask rules is not about getting people in trouble. As with any other violation, an employer should seek out why the worker is not wearing a mask. Is the reason due to a medical condition or is it a political statement?
If the employee chooses not to wear a mask because of a political stance, Shaw recommends that the employer state that the employee is expected to comply with all of the company’s rules and regulations, and that violations are subject to discipline.
“…Employees have to know [that] even though we are getting some mixed messages in the media and there are some political issues out there, when it comes to your workplace, you have to follow the rules that the employer has set for you as long as those are appropriate rules,” Shaw says.
Moreover, she continues, the employer should communicate that the rules put into place are to keep all employees safe.
If an employee is not wearing a mask because they have a medical condition, the employer should treat it like any other medical accommodation request, but should keep in mind that this situation, is slightly different due to the direct threat to everyone’s health and safety, Shaw explains.
“Just because somebody has a medical condition that precludes them from being able to wear a mask doesn’t mean they get to expose…people to the virus,” she says.
Should a worker have a medical condition that precludes wearing a mask, employers should find ways to maintain safety, such as allowing the employee to telework or finding other ways to get the employee into the workplace, Shaw says.
Shaw compares the situation to having a service animal. Employees with service animals still have to abide by certain rules. For example, a service dog has to behave and cannot relieve itself at work. Similarly, she says, even though an individual has the right to an accommodation, there are going to be limitations on that, especially given the direct threat that not wearing a mask presents.
Sometimes, the reason an employee is not wearing a mask is simply because they forgot. At work, people are rushing to finish projects, or have to get up to retrieve a document from the printer, or perhaps are hurrying to attend a customer, Shaw says.
Employers need to have grace, she says, and realize that “people are going to make mistakes occasionally.”
Still, it is critical that employers enforce the rules, and they should be transparent about all of the company’s expectations, Shaw says.
Employers should also find ways to remind employees of the mask and social distancing requirements. Employers can buy posters and decals to space out six-foot distances or use masking tape to establish an employee’s work zone.
Now that face masks are more widely available, Frank points out that masks have become the new fashion accessory, and masks might contain logos, designs and messages. Can an employer prohibit masks with certain words, imagery or decals?
Similar to a dress code policy, employers can prohibit masks that contain expletives, inappropriate graphics, or messaging that violates the company’s Equal Employment Opportunity Commission (EEOC) policy, Shaw explains.
Although an employer can prohibit masks with messaging altogether, if an employer asks that employees wear only a certain color of mask so that it matches their company’s shirt, then the mask becomes a “uniform” requirement, and the employer will have to provide the mask, Shaw explains.
“So don’t get too specific about the color or the style or the design,” she says. “But you are allowed to say…nothing with a printed message, nothing with an inappropriate graphic or logo or screen print on it.”
In other words, Frank says, it’s back to the basics, “taking COVID out and going back to the basics of what would you do in this circumstance to try to solve the puzzle.”
Shaw recommends employers exercise common sense and remember “our point is workplace safety; we’re trying to keep people safe and healthy.” If employers think about that as being the goal, it helps with what steps they actually take.
CalChamber has placed a special emphasis on the need to inform our members and the public about the need for masks and physical distancing in all workplaces and businesses across the state so we can keep California Open. The Keep California Open, Six Feet and a Mask campaign is now highlighted on CalChamber’s COVID-19 resource page. Since the crisis began, CalChamber has compiled important COVID-19 information for employers on the page so they can easily stay up to date on new developments.
In addition, to help our members comply with mask and physical distancing orders and to keep employees and customers informed during the ongoing crisis, the CalChamber is also offering a variety of posters and floor decals for purchase.