** This post was originally made in May 2020 but has been updated due to recent changes. Be aware that as a result of the fluid situation involving COVID-19, the below is up to date as of late June 2020. Things could change that affect the below. We will do our best to update but want to make sure you are aware of this fact.
Whether you have kept your business open during the coronavirus pandemic as an essential business or you are just beginning to make plans to reopen and to bring employees back to the workplace, it is important to understand your legal rights and obligations as an employer when it comes to person protection equipment (PPE). The Occupational Safety and Health Administration (OSHA) has provided guidance on best practices for employers during the COVID-19 emergency, including workplace practices pertaining to PPE. We want to provide you with more information about requiring employees to wear PPE, including whether you have rights as an employer to request that an employee refrain from wearing PPE in a particular work environment.
Can I Require My Employees to Wear Masks?
The short answer is yes. Absent a reasonable accommodation based upon a protected disability or a sincerely held religious belief, an employer may require employees to wear masks in the workplace.
As an Employer, Must My Employees Wear Masks?
This depends on your location in Texas since there is no statewide mask requirement. In Dallas County, Harris County, Bexar County and Tarrant County, the County Judges have instituted orders mandating businesses to require visitors and employees wear face coverings. Failure to do so can result in a fine to the business. Texas Governor Greg Abbot has indicated that these orders may stand and do not conflict with his orders. You should consult the orders for the specific requirements and any exceptions thereto but in general, businesses are required to develop and implement a Health and Safety Policy that at a minimum, reflects the mask requirement. That policy must also be conspicuously posted. So unless the city or county in which your business is located has a mask requirement, then you are not mandated to require your employees to wear masks.
Beyond these county and city orders, however, there is additional guidance. According to OSHA, workplace PPE requirements must be based on the hazard to the worker. Employers are required under OSHA rules to provide employees with PPE that is necessary “to keep them safe while performing their jobs.” Keeping an employee safe during the COVID-19 pandemic can include providing and requiring use of PPE that will help to prevent exposure to the coronavirus and infection with COVID-19. The particular type of PPE with which an employer must comply is based on the employee’s risk of being infected with COVID-19.
PPE includes face masks, as well as gloves, goggles, face shields, and respiratory protection.
Before an employer must require PPE, the employer needs to perform a hazard assessment and must consider alternative ways of protecting employees. Once an employer’s risk assessment says that PPE is necessary and will be required in the workplace, the employer must also do the following:
- Identify the specific PPE that is required based on the employee’s risk (which may be a face mask alone, or a face mask in addition to one or more of the other types of PPE listed above);
- Train employees in proper use of the PPE;
- Clean and provide maintenance for the PPE as appropriate, or replace used PPE; and
- Develop a plan for PPE and employee safety.
When OSHA requires employers to require masks or other PPE in the workplace, employers must pay for the PPE.
Allowing Employees to Wear Masks if They Choose
OSHA requirements are different when an employer is not requiring masks, but an employee asks to wear a mask for protection. The employer’s obligations often depend upon the type of mask the employee wants to use. OSHA has made clear that a respirator is not necessary for protection outside a healthcare setting. If an employee wants to wear a DIY cloth mask, the employer will need to ensure that the employee is not creating any additional workplace hazards that would violate OSHA rules. For voluntary mask use, employers also may need to provide OSHA information about wearing a mask in the workplace.
Employers Probably Cannot Require an Employee Not to Wear a Mask
Employers are generally expected to consider recommendations issued by the U.S. Centers for Disease Control and Prevention (CDC). Indeed, the CDC issued recommendations for Americans to wear cloth face coverings in a variety of situations to prevent the spread of COVID-19. As such, unless a DIY cloth mask would result in a different workplace safety issue or OSHA violation, an employer should not tell employees that are forbidden from wearing face masks at work without speaking to an employment lawyer. For example, an employer likely cannot tell an employee not to wear a face mask for aesthetic reasons.
Contact a Dallas Employment Lawyer