RETURNING TO WORK: TO MASK OR NOT TO MASK?
A majority of empowerHR Consulting's small business clients are located in California, specifically Los Angeles County. As the "Safer at Home Order" is beginning to lift and the state begins it's phased re-opening approach, small businesses, especially, are faced with big decisions.
"Should we reopen - if so, when?"
"How can I best support my employees and also my customers?"
"There's so much out there about new requirements and laws for re-opening. What is really required?
And the big one...
"Are masks really required under Governor Newsom's law?"
The Short Answer? NO - THERE IS CURRENTLY NO MANDATORY MASK LAW IN CALIFORNIA.
I know - you're likely thinking, "WHAT??" Everywhere you look our government agencies + media outlets are stating it is "mandatory" for everyone to wear a mask. It's incredibly confusing to see so much conflicting information, and a bit disheartening to see people and businesses be taken advantage of. A large part of my job as a Human Resources Consultant is to inform businesses of their legal and ethical obligations as they work to grow and support their team. The last thing I want is for businesses to have vulnerabilities to legal action - so when I inform business owners + leaders that there is currently no mandatory face mask law, I mean it.
This post is not about the effectiveness of masks - this post is simply to share what businesses are legally required to do regarding facial coverings. empowerHR Consulting does not provide medical or legal advice - rather, we provide recommendations on best practices. Please exercise your own well-researched judgment as you decide what is best for your business.
Let's break this down a bit, shall we?
Q: I've read Governor Newsom's twitter feed, I've seen the LA Times and other news outlets state face mask coverings are mandatory. They're all saying this is a law and that it's required.
A: Unfortunately, this is not a fact. There is plenty of confusion surrounding this topic because of the conflicting details coming from news outlets and from the choice of verbiage used by our state and local government agencies.
First, it's crucial to remember how a law becomes a law - Governor Newsom (and any other governor) does not have the legal authority to make any law. Only state or city legislature can create a law - i.e. the Assembly or Senate, or a city council. For example, a law would be AB5 or SB276. The governor or local mayors simply saying something is mandatory does not make it a law. When something is a law, there would also be a Penal Code referenced which would then indicate what the fine or punishment is for violation of the law. To date, there is no such law or Penal Code at the state or local level.
Governor Newsom is able to direct state departments to implement guidelines. Following Newsom's statement on facial coverings, the California Department of Public Health released their updated Guidelines for the Use of Face Coverings. Again, this is a Guideline - this is not a law. Although they use conflicting verbiage in the document itself this is truly simply a Guideline - a document to reference and adhere to as one chooses. The CADPH is providing recommendations, but there is no enforceable law here. There is no Penal Code referenced. The choice for facial coverings, ultimately, is up to the individual to make for themselves.
Why does this matter? As a small business owner, you do have choices. There is no mandate and there is no law on this topic. You have the right to make the decision that makes the most sense for you and your business related to facial coverings.
Q: Do I have to require my employees wear a face covering?
No - there is currently not a legal requirement for businesses to require face coverings of their employees OR their customers. Everything that has been communicated from the state of California, the state and county Departments of Health and even OSHA have all been guidance statements - not an enforceable law. This means businesses should decide for themselves if this is a personal company policy they'd like to require.
Q: As a business owner, can I require my employees wear a face covering?
It depends. Businesses can certainly implement policies for employees. However, policies must not be discriminatory and must support the General Duty rule of OSHA, which is to ensure every employee and workplace is free from recognized hazards that are causing or are likely to cause death or serious physical harm to his employees.
In all guidance provided by the state and county thus far, the statements list the following people are exempt from wearing a facial covering (please refer to the guidance documents for an exhaustive list of exemptions):
Persons with a medical condition, mental health condition, or disability that prevents wearing a face covering. This includes persons with a medical condition for whom wearing a face covering could obstruct breathing or who are unconscious, incapacitated, or otherwise unable to remove a face covering without assistance.
Persons who are hearing impaired, or communicating with a person who is hearing impaired, where the ability to see the mouth is essential for communication.
Persons for whom wearing a face covering would create a risk to the person related to their work, as determined by local, state, or federal regulators or workplace safety guidelines
Q: I want to make facial coverings a policy for my employees. What if an employee tells me they are exempt?
An employee who cannot wear a facial covering due to the above may be protected under the Americans with Disabilities Act (ADA). This means no retaliation or harassment must be directed towards the employee, but instead you should engage in a discussion with them to discuss reasonable accommodations. For example, Can the employee continue teleworking? If in an office or indoor space, can the employee continue working as long as social distancing measures are in place?
Although employers may ask the employee to provide a doctor's note in order to support the request for a reasonable accommodation, the ADA strictly limits the circumstances under which an employer may ask questions about a disability or require medical examinations of employees. Business owners/managers may ask questions only if the reasonable accommodation request would cause an employee to be unable to perform essential job functions or if they will pose a direct threat of harm because of a medical condition.
It's important to keep in mind it's generally not in the best interest of a business/manager to know medical information about its employees. This knowledge could potentially be used against a business or it's employees in a discrimination case. When a business possesses sensitive information this also opens the window for the potential for a breach of employee privacy. All of which can lead to costly legal action against a business.
Q: Do I have to require my customers wear a face covering?
No - there is currently not a legal requirement for businesses to require face coverings of their visitors, customers OR employees. However, as a business owner, you may choose to make this a requirement.
Remember, visitors or customers may be exempt from wearing a facial covering due to the reasons listed above as well. If a visitor or customer tells you they are exempt from wearing a face covering due to medical reasons, you should allow them to shop/visit so as not to discriminate or harass them due to a covered disability or medical condition. Businesses are not allowed to ask visitors or customers about the disability or medical condition. If you choose to prevent someone from visiting or shopping who won't wear a facial covering due to medical reasons or a covered disability, you are leaving your business highly vulnerable to legal action.
Q: Are face coverings safe for my employees to wear for prolonged periods of time?
This depends. There is concern wearing facial coverings may be a violation of OSHA standards which require breathing air to have at least 19.5 percent oxygen content. Remember, all businesses are required to follow the General Duty Rule of OSHA. As part of OSHA, Paragraph (d)(2)(iii) of the Respiratory Protection Standard considers any atmosphere with an oxygen level below 19.5 percent to be oxygen-deficient and immediately dangerous to life or health. It states "To ensure that employees have a reliable source of air with an oxygen content of at least 19.5 percent, paragraphs (d)(2)(i)(A) and (d)(2)(i)(B) of the Respiratory Protection Standard require employers working under oxygen-deficient conditions to provide their employees with a self-contained breathing apparatus or a combination full-facepiece pressure-demand supplied-air respirator with auxiliary self-contained air supply."
The oxygen content while wearing a facial covering will vary with each individual based on the type of facial covering used, how clean it is, the type of work the employee is performing, and the health condition of the individual, among other factors. The Mayo Clinic details normal oximeter readings to be between 95 - 100%. Readings between 91% - 94% are low and should be monitored closely, and a reading of 90% or less is considered to be a sign of a problem related to breathing or circulation, and may require medical attention.
Employees may want to consider purchasing a Pulse Oximeter to use while at work to safely monitor their oxygen saturation level. Employees may also consider compiling a written record of their monitored oxygen level throughout each day in order to present it to their manager should any breathing difficulties or medical issues arise that may present the need for an exemption from facial coverings.
Q: Can an employee file a Workers Compensation claim if they contract COVID-19 or if they contract a facial covering related illness or injury?
Yes. Governor Newsom made a large change to CA's worker's compensation standards, saying any employee who contracts COVID-19 is presumed to have contracted the virus while at their place of business. Under these new standards, the employee does not have to provide proof they contracted the illness while at work.
Additionally, there are more cases of headaches, dizziness, difficulty breathing, cystic acne, and facial boils (!) being reported as a result of long-term facial covering use. If facial coverings are a policy at your workplace, employees may be able to file worker's compensation claims as a result of facial covering-related injuries and illnesses.
Q: The LA County Department of Public Health has checklists for businesses to follow when reopening. One of those items states facial coverings are required of employees. I thought you said this wasn't required?
All LA County Protocol checklists are guidance, not a requirement. There is no Penal Code or enforceable legislative law that requires facial coverings. However, as a business, you may absolutely make the choice to make this a policy for your employees, as detailed above.
As the checklists state, should you decide any of the listed items are not applicable to your business you simply need to be ready to provide the reason why you did not apply a guidance point to your business. This would likely only need to be given should the Department of Public Health perform an inspection of your business.
So - what's a business to do? To mask or not to mask?
I know this is all confusing, and ultimately what most people want is to do what is best for their health and the health of their families, neighborhood, employees, and businesses.
At the end of the day, only you as the business leader can make the decision that you determine is best for your situation. If you manage a senior living facility, it absolutely makes sense to make PPE (personal protective equipment) a requirement. If you have an office environment, it may make more sense to remain teleworking or to have staggered shifts at an office in order to facilitate social distancing.
Small Businesses, in particular, have been impacted heavily by this pandemic. My encouragement to you is for you to know you have choices as you consider if and how to reopen your business. Lead with kindness, empathy, and respect. Always be sure to research what is truly required and discern what guidelines are appropriate (and not appropriate) for your business and employees to follow.
empowerHR Consulting is here to help you and your teams as we navigate this together. We want you + your small business to not only survive but come out of this stronger than ever. If you find yourself with an influx of unemployment claims from former employees, need help navigating the new remote work landscape or understanding the barrage of new labor laws please reach out to empowerHR Consulting for guidance. We are here for you!
**The content of www.empowerHRconsulting.com and any HR support provides practical and HR best practice information/recommendations and is not legal or medical advice. empowerHR Consulting, LLC does not provide legal advice or other professional services. While every effort is made to provide accurate and current information, laws change regularly and may vary depending on the state and/or the municipality your business operates in. The information provided from empowerHR Consulting is not a substitute for legal advice or your professional judgment. You should review applicable, federal, state and municipality laws in your jurisdiction and consult with legal counsel as you deem necessary.