Across the country, states and municipalities are dropping COVID-19 mask mandates. Should employers do the same? Not necessarily. All employers are subject to OSHA’s General Duty clause which requires employers to provide a work environment “free from recognized hazards that are causing or are likely to cause death or serious injury” to employees. Federal OSHA and some state enforcement plans have been issuing General Duty clause citations to health care and other employers accused of exposing employees to an unreasonable risk of COVID-19 infection.
OSHA’s guidance on mitigating and preventing the spread of COVID-19 in the workplace expressly references CDC guidelines, which include wearing a mask indoors in areas of substantial or high transmission. Despite the Supreme Court’s rejection of OSHA’s COVID-19 Emergency Temporary Standard, as of January the agency had already announced citations relating to the coronavirus arising out of 294 inspections. Prior to eliminating mask requirements, employers should assess whether doing so will result in an unsafe work environment. This should be an individualized, documented analysis that looks at the particular workplace, and takes into account factors such as ventilation and employees’ ability to maintain distancing during work.
If mask requirements are dropped, employers should prepare to address employee concerns and requests for accommodations. Individuals with medical conditions that make them vulnerable to infection may be entitled to workplace accommodations under the Americans with Disabilities Act, such as relocation to a more isolated part of the facility. The CDC is expected to revisit its masking guidance in the next few weeks. If these recommendations are dropped or modified, employers may need to adjust their policies and responses to employee questions.