On April 12, 2020, New York State became the largest jurisdiction to impose face-covering requirements in response to the ongoing COVID-19 pandemic. Governor Andrew Cuomo issued an executive order requiring “all essential businesses or entities” to provide “any employees who are present in the workplace” with face coverings to wear “when in direct contact with customers or members of the public,” and specifying that businesses “must provide” such face coverings “at their expense.”
New York thus joined New Jersey, the District of Columbia and numerous other localities in requiring or recommending the use of masks or other face coverings in the workplace and elsewhere in public.
The following are answers to some of the most common questions in this area:
What is a “mask,” and what is a “face covering”?
A mask is usually defined in workspaces as either (i) a filtering respirator such as an N95 or K95 or (ii) a specialized medical grade or surgical mask. In contrast, a face covering is a cloth, bandana, or other type of material that covers an employee’s mouth and nose.
Other types of improvised coverings, such as a scarf or single cloth layer would not be adequate under most orders mandating face covering
Who pays for masks/face coverings?
New York specifically requires employers to provide employees in essential, customer-facing roles with face coverings at the employer’s expense. Similarly, New Jersey requires restaurants, dining establishments and other food service businesses, as well as various public employers, to provide their employees with face coverings and gloves at the business’s expense.
Who does the cleaning and maintenance, and who pays for it?
As the CDC states, multiple-use face coverings should “be able to be laundered and machine dried without damage or change to shape,” generally at least once a day or more often if contamination occurs. Regardless of whether face coverings are governmentally mandated, required by employer policy, or merely recommended, proper cleaning and maintenance are critical to ensure that employees do not reuse dirty or contaminated face coverings, which pose a hazard to other employees as well as customers.
In principle, responsibility for cleaning expenses could vary based on state uniform maintenance rules. For example, under New York State’s Minimum Wage Orders, most employers have the option to either launder uniforms or to pay the employee a set premium to cover cleaning expenses.
What if an employee declines to wear a face covering for medical reasons?
Generally, employers should be providing training to employees at the time that face coverings are distributed or implemented, and the training process should include identification of any medical issues that could interfere with wearing face coverings, such as claustrophobia, asthma, COPD or other conditions. Employers are advised to engage in the interactive process with such employees as required by the Americans with Disabilities Act (ADA) and similar state and local provisions. An employee who cannot breathe through a face covering should not be required to wear one, but may need to be temporarily removed from customer-facing responsibilities, provided with leave or accommodated in some other fashion.
What if an employee declines to wear a face covering for non-medical reasons?
Employee objections should be evaluated in light of all of the relevant circumstances. For example, an employee may raise objections based on religious grounds, where their pre-existing grooming or dress requirements conflict or interfere with prescribed face coverings. In such cases, the employer should engage in the interactive process as required by Title VII and similar state and local provisions.
Individuals who simply decline to wear face coverings, but do not raise a medical or otherwise protected objection, should not be permitted to work and may be disciplined for not following work requirements.