Can Texas Employers Still Require Employees And Customers To Wear Masks?

Vinson & Elkins LLP

Vinson & Elkins LLP

On March 2, as I was waiting in line in the parking lot of NRG Stadium in Houston to get my first COVID jab, Texas Governor Greg Abbott announced that, effective March 10, there would no longer be any COVID-19 operating limits for Texas businesses. While the governor “strongly encouraged” individuals to wear face masks when it is “not feasible to maintain six feet of social distancing from another individual,” he made it clear that no Texas governmental entity could mandate a face covering except in counties where the number of COVID-19 hospitalized patients exceeds 15% of the total hospital capacity.

Not surprisingly, the governor’s Executive Order elicited strong responses, both pro and con. Many Texans reposted their Facebook profile pictures with the message, “I choose to #WearAMask,” while anti-maskers celebrated the fact that the announcement had been made on Texas Independence Day. In this post, we will avoid taking sides in any ongoing, political debates and simply address the question of whether employers can (or should) continue to require employees and customers to wear masks.

With respect to whether employers can continue to require masks, the answer is clearly yes. In fact, just this morning, The Wall Street Journal reported that some of the biggest U.S. retail, theater, hotel and restaurant chains operating in Texas announced that they will continue to mandate mask wearing. Admittedly, it may become more challenging for businesses to justify mask wearing requirements to customers in the absence of governmental prohibitions, but it seems that many businesses will continue to require mask wearing of employees and customers anyway.

It is also likely that OSHA will issue an emergency temporary standard in the next couple of weeks that requires mask wearing in certain contexts. While such a temporary standard would be vulnerable to judicial challenge, OSHA’s general duty clause would still apply if OSHA can show that the failure to mandate masks presents a hazard to employees. OSHA has already issued “guidance” that recommends that employers assess exposure risk in their workplace and consider measures to reduce those risks. Failure to follow this guidance could be the basis of a general duty clause violation.

Regardless of what happens on the regulatory front, given the anxiety that many workers have felt, and continue to feel, about being required to return to work, requiring masks and taking other precautions to protect employees from exposure to COVID-19 is a good way for employers to demonstrate that they care about the welfare of their employees.

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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