What to Do About Workplace Masking in the “Open” States

By Elizabeth Torphy-Donzella - Shawe Rosenthal LLP

March 8, 2021

With case rates declining and COVID vaccine options expanding, five States as of March 8, 2021 have announced the end of all pandemic-driven restrictions, including mask mandates. (The lifting of Texas’ ban takes place on March 10; eleven states never mandated face coverings.) The “mask wars” had been tamped down by State mandates, but détente has ended in the “open” States. What does this mean for workplaces?

Some businesses have stated that they will continue to require masking. As the Wall Street Journal reports, “Hyatt Hotels Corp, Target Corp., Starbucks Corp. and CVS Health Corp., are among the major corporations saying they have no plans to drop mask requirements.” These businesses are likely on the “right” side of the debate in the opinion of the agencies that regulate workplace safety standards. The Occupational Safety and Health Administration (OSHA), has endorsed the standards of the Centers for Disease Control and Prevention (CDC) on masking, including in workplaces. As we recently explained, the CDC strongly supports masking and, indeed, went so far as to deem double masking to be the “gold standard.”

Businesses may still require masks in their establishments, however, even if the State has dropped the mandate. Companies that choose to require employees and patrons to wear masks should prepare to deal with challenges and be thoughtful about how to address “robust” ones, especially by clients or customers. The CDC has offered suggested  strategies to try to avoid potential incidences of violence that may arise from masking opponents. Among them, make sure the masking requirement is clearly communicated via signage and online, like on websites and FaceBook pages. Retail outlets should continue curbside pickup, personal shopping services, and home delivery to provide alternatives to those who view masks as an infringement on their autonomy. Training employees to recognize threats and defuse tense situations is another suggested measure.

Employees and members of management present different challenges, with those demanding the continued use of masks being as vocal as those who chafe at these continued restrictions. Be prepared to clearly communicate expectations and, before doing so, get buy in from those at the top. The “safest” choice is to continue to follow the CDC’s and Occupational Safety and Health Administration’s (OSHA) recommendations – masks, social distancing, plexiglass barriers, etc. Moreover, the failure to do so could arguably leave a business open to a claim for failure to comply with the Occupational Safety and Health Act’s General Duty Clause to provide a safe workplace environment. Employees who refuse to comply with masks mandates may be disciplined or discharged. For companies that do not require masking, disciplinary action against those who protest the policy as unsafe is risky as claims of retaliation under OSHA for insisting on workplace safety may be viable. It is advisable to consult with legal counsel before taking action with such employees.