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Mandating Masks for Employees and Guests: What’s legal, what’s right, and what’s next

All your questions about masks for employees and guests, answered.

Wearing a mask has become a hot-button issue in the U.S. in 2020. While mask mandates vary from state to state, and by local jurisdiction, the experts agree that wearing a mask does reduce the changes of transmission, as well as how sick someone gets if they are exposed. 

With all of these questions, we strongly recommend running any company policy by your legal counsel before implementing.

Can I mandate masks for employees? 

Yes - and we recommend it. Most states and jurisdictions have some sort of regulation for businesses that require employees to wear a mask, but even if you’re in a jurisdiction that doesn’t require it, it's important to note that the CDC recommends that all employees wear masks. Check your state and local guidelines, and of course, check with your legal counsel before you finalize any policies.


What if an employee can’t wear a mask due to a disability? 

Employees that have a disability are protected under the ADA, so you’ll need to make reasonable accommodations as their employer. Angelo Amador, Executive Director of the Restaurant Law Center, answered some questions in a recent webinar about this issue, and reminded employers that reasonable accommodation doesn’t mean that the employee necessarily gets the accommodation they asked for. If a cashier doesn’t want to wear a mask, reasonable accommodation under the ADA doesn’t mean allowing that employee to just be maskless at the cash register…it means coming up with an alternative that’s reasonable. Can they wear a different material mask that’s easier to breathe through? Can they work a different position where they don’t come within 6ft of other people during their shift? Can they work shorter shifts that make the mask more tolerable? 

We may sound like a broken record, but it's always a good idea to check with your HR team and legal counsel any time an employee (or guest) requires accommodations.


Can an employee wear a face shield instead of a mask if it’s easier to breathe? 

We don’t recommend it from a clinical standpoint. Face shields are not nearly as effective as masks in terms of containing vapor and droplets that carry the virus. Because we know the coronavirus can be aerosolized, while a face shield can help prevent larger droplets from landing on someone else, it doesn’t contain smaller, aerosolized droplets that can escape down and around the sides of the face shield. There may be some, very rare situations, where a face shield could be used as an alternative to a face mask when someone is unable to wear a mask, but again, the risk of transmission is significantly higher and this isn’t recommended from a clinical standpoint. 


Can I mandate masks for guests who aren’t wearing one, or refuse to? 

Yes, you can. Despite a false narrative that’s going around about choosing to wear a mask as a constitutional right, Mr. Amador confirmed that those don’t actually apply to private businesses. And while there may be guests with a legitimate disability that prevents them from wearing a mask, that doesn’t mean that you have to allow them to enter your business, especially indoors, if it would "impede your ability to safely provide goods and services to others", he said.

Instead, offer a reasonable alternative - like ordering online or by phone and bringing their order outside to place it in their car. 

It's a good idea to prepare a policy for if (and, likely, when) this happens, including running it by your counsel and training your employees in how to handle this type of situation.


What else can we do to promote mask wearing for guests? 

Some good tips include offering free disposable masks and hand sanitizer at the door for folks who’ve forgotten theirs or prefer disposable. Prominent signage, on the door and at the entrance to the store, helps make it easier for your employees to enforce mask rules. Make it obvious and clear that they’re just following their store procedures (and state/local requirements, where that’s true). And, wherever possible, prepare and train employees to do this - they’ll probably have to have this conversation multiple times per day. Having a bit of training can go a long way in terms of how employees react in various situations and diffuse any tension. 


What else can we do to promote mask wearing for employees (for their full shift, worn properly)? 

For employees, offer free reusable masks (and disposable, if you have enough supply), but let employees choose what face coverings to wear that work for them. It’s better to have an employee with a face covering that they wear correctly, even if it's made of a thinner fabric, for example, than one that they are constantly adjusting or removing to breathe. Encourage employees to try different kinds - with wire nosepieces, with different fabrics, etc. - to find one that works best for them. 


And there’s been a lot of talk about increasing ventilation for preventing transmission of the virus, but it’s also helpful for keeping employees cool. Hot temperatures are the most common reason for employees removing masks, so anything you can do to mitigate that is another great way to increase how often they’re properly wearing their masks. 


Disclaimer: This post is meant for general information and educational purposes only and does not constitute, and is not intended as, any form of medical, legal or regulatory advice or a recommendation or suggestion regarding the same. No recipient of this information should act or refrain from acting on the basis of this information without first seeking legal advice from counsel in the relevant jurisdiction.

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