The answer is “yes”. The U.S. Equal Employment Opportunity Commission (EEOC) has released guidance that indicates that an employer may require employees to wear personal protective equipment (PPE), such as a face covering, mask, gloves, or gowns in order to reduce the transmission of COVID-19. In addition, the Centers for Disease Control and Prevention (CDC) recommends that individuals wear cloth face coverings in public, and where social distancing measures are difficult to maintain. Across the U.S., states are taking it even further. Governors are making their own requirements for face protection. As of the writing of this article: Colorado, Connecticut, Georgia, Illinois, Maryland, Michigan, New Jersey, New York, Pennsylvania, Rhode Island, Texas, Utah, Vermont, and Washington D.C., have varying degrees of requirements for employees and customers of essential businesses to wear a face covering over their nose and mouth. Some local municipalities also require that individuals wear face coverings, so it is important to know the executive orders and ordinances for all areas where an organization conducts its business.
As reported by the CDC, COVID-19 spreads mainly from person to person through respiratory droplets produced when an infected person coughs, sneezes, or talks. These droplets may land in the mouths, noses, or eyes of people who are nearby or may possibly be inhaled into the lungs. Studies and evidence on infection control has shown that these droplets usually travel around six feet, or about two arms lengths. We also have learned that a significant number of individuals with COVID-19 lack symptoms, thus are asymptomatic and that even those who eventually develop symptoms, or who are presymptomatic, may transmit the virus to others even before showing symptoms. Again, this means that the virus may spread between people interacting within a close proximity, even if those people are not exhibiting symptoms. So, to stop the spread in the workplace, employers should either mandate or encourage employees to wear cloth face coverings. They not only protect the wearer from spreading respiratory droplets, but are also a good reminder for the wearer to not touch their face.
The Occupational Safety and Health Administration (OSHA) has issued a manual titled, Guidelines on Preparing Workplaces for COVID-19 (www.osha.gov/Publications/OSHA3990.pdf). In the manual, OSHA provides a guideline for employers classifying a worker’s exposure to COVID-19 based upon four levels: very high, high, medium, and lower risk (caution). According to OSHA, very high exposure risk jobs are those with a high potential for exposure to known or suspected sources of COVID-19 during specific medical, postmortem, or laboratory procedures. High exposure risk jobs are those with high potential for exposure to known or suspected sources of COVID-19. Medium exposure risk jobs include those that require frequent and/or close contact with (i.e. within six feet of) people who may be infected with COVID-19 patients (i.e. travelers who are returning from international locations with widespread COVID-19, areas with ongoing high community contact, etc.). Lower exposure risk (caution) jobs are those that do not require contact with people known to be, or suspected of being, infected with COVID-19 nor frequent close contact with (i.e. within six feet of) the general public. Workers in the low exposure risk (caution) have minimal occupational contact with the public and their coworkers. Depending upon the exposure risk level, OSHA has recommendations for engineering, administrative, and PPE controls. Employers who are unsure of whether or not they should require employees to wear face coverings, or another form of PPE, in the workplace may want to consult with the OSHA manual in order to determine what risk level their employees may have in their jobs. Remember too that not all jobs within an organization will have the same risk level, so the requirement of whether an employee should wear a face covering may differ from department to department. However, again, if employees are going to interact closer than six feet from each other, it is a CDC recommendation that everyone be required to wear a face covering.
Employers who will require that all employees wear face coverings as part of their job should write it out in a clear and concise policy so that everyone in the workplace knows and understands what is expected. The policy would then protect the employer if they needed to take action with an employee who refuses to comply. A well-written policy may include the following:
During a pandemic, it is also legal for an employer to ask employees that physically enter their workplace if they: have COVID-19, have been tested for COVID-19, or are experiencing symptoms of COVID-19. It is also not against the law for an employer to check the temperature of an employee who enters the workplace. If the employee refuses, the employer has the right to deny entrance to the employee. If an employee has COVID-19 symptoms or was tested with a high fever when entering the workplace, it is unlawful for that information to be spread to other employees, if the employee does not give consent. All medical information related to COVID-19 is still considered confidential under the guidelines of the Health Insurance Portability and Accountability Act (HIPAA). With all of this being said, employers may not exclude at-risk employees. If an employee is pregnant, has a pre-existing medical condition, or is at an age where he/she is considered high-risk for COVID-19, the employer does not have the right to exclude those employees an any way from the workplace.
Employers may also want to require its employees to abide by certain protocols such as handwashing, proper coughing and sneezing etiquette, and proper tissue usage and disposal, in order to contain the spread of COVID-19, in addition to the wearing of face coverings. Employers should include these protocols within their face covering policy as a way to enforce that they will be followed. However, again the best policy is one that explains to employees why the policy is required.
For additional information on whether employers may require employees to wear face coverings in the workplace, please contact us at www.newfocushr.com .
Written By: Kristen Deutsch, M.B.A., CCP
President
05/29/2020
