[co-author: Mollie Smith]
Nuances you never thought possible.
Debates about the necessity of face coverings, and whether face mask requirements are enforceable, have received a great deal of public attention throughout the COVID-19 pandemic. Although instructions at the federal level for non-health care workers simply point to recommendations from the Centers for Disease Control and Prevention, some states and corporations have mandated the wearing of face masks.
Most states require masks in specified circumstances, such as when social distancing is not possible. However, an increasing number of jurisdictions are issuing rules requiring adults to wear face coverings in all indoor public spaces.
Mask mandates have given rise to concerns about the possibility of stifled oxygen flow and carbon dioxide poisoning. The Occupational Safety and Health Administration directly addressed the question of oxygen levels in a recent Frequently Asked Question, stating that “Medical masks, including surgical masks, are routinely worn by health-care workers throughout the day as part of their personal protective equipment (PPE) ensembles and do not compromise their oxygen levels or cause carbon dioxide buildup.”
However, an employee could have a medical condition that precluded him or her from wearing a mask. This could include respiratory, and even psychological, conditions. If an employer mandates the use of face masks in the workplace (whether based on its own policy or a legal requirement), and if an employee is unable to wear one, the employer should request medical documentation and consider making a reasonable accommodation for the employee. Under the Americans with Disabilities Act, reasonable accommodations could include temporarily assigning the employee to a work area where social distancing is possible, or considering alternatives to face masks (including face shields or scarves), among other possibilities.
Retail and food service workers face dangers in the form of angry customers as they enforce mask use in their places of employment. A number of viral videos and news articles show confrontations in which employees are subject to verbal and even physical abuse from customers who refuse to wear masks. Some states now require companies to enforce face-covering laws, and some retailers have expressed resentment at being forced into the role of “mask police.” The policies are usually enforced through posted signage and verbal reminders from employees, who are most often instructed to avoid confrontations. Although employees might complain to OSHA about fears that confrontations could result in violence, it is unlikely that OSHA would issue a General Duty Clause violation for workplace violence in the absence of an actual physical altercation.
Face shields have been suggested by OSHA as an alternative in workplace situations when masks are not appropriate. This can include circumstances where the mask might become moist, or when employees are exposed to airborne chemicals that could collect on the surface of the mask. As already noted, allowing an employee to wear a face shield instead of a mask might be a form of reasonable accommodation under the ADA.
No federal agencies, however, have confirmed that face shields provide as much protection from COVID-19 as surgical masks or cloth face coverings. The CDC continues to recommend only masks or cloth face coverings. At least one state OSHA agency, the Washington Division of Occupational Safety and Health, has affirmatively stated that face shields are not an acceptable substitute for masks, and it is likely that other states might take issue with offering face shields as an alternative to masks.
We recommend that employers require their employees to use face masks or cloth face coverings in common areas, except in those circumstances where a face shield is considered safer, or is being offered as a reasonable accommodation. Companies should also require customers and visitors to wear face coverings while in the workplace, and, if possible, should offer free masks to anyone who doesn't have one. Employers with employees who have direct contact with the public should advise employees to avoid confrontations with customers or clients who refuse to comply.
Mollie Smith is a senior and prelaw student at Samford University who is working in Constangy's Atlanta Office.
Image Credits: From flickr, Creative Commons license. The Mask (Jim Carrey) by Mike Mozart, woman in sleep mask by Tigrist Sapphire, man in Guy Fawkes mask by Oliver Hallmann, cyclops family by David Lytle, Lone Ranger (Clayton Moore) by Insomnia Slept Here.