Episode 79: COVID-19: Enforcing Mask Rules at Work

Welcome to the Workplace, a podcast by Cal Chamber. I'm Erica Frank, Cal Chamber's executive vice president and general counsel, and with me on the podcast today is Jennifer Shaw of the Shah Law Group, one of our favorite guests. Welcome, Jennifer.

Hi, Erica. How are you?

Doing lovely today. How are you?

I'm well, thank you. I just can't believe it's July. It's just this year is flying by, which I suppose it's probably a good thing.

Yeah. And I think for myself and our listeners, it's been quite a surreal year with COVID 19 casting a shadow on most of the year. It's a little bit of an interesting time. And on that note, you know, as much as I would love to talk about something that is unrelated to COVID 19, it's continuing to be a very important topic for us to talk about. And I know that a lot of employers are contacting Cal Chamber, and I'm sure you're receiving many calls from clients just looking for some guidance on how to manage COVID 19 compliance and how to manage situations where employees are. They're not wearing their mask. Whether it's intentionally or unintentionally or physical distancing isn't being adhered to because they're new social habits that we all have to adjust to.

Are there ways that employers and employees can work together to ensure that the workplace is complying with all of the guidelines that we're receiving from the state and local health authorities so that we can continue to foster a healthy workplace? Folks aren't upsetting each other. I mean, this is such a turbulent time.

Well, Erica, I love the way you asked that question because it is about the positive steps we can take. This is not about getting anybody in trouble. It actually reminds me of meal and rest period compliance where people say, well, you know, I don't want to take my meal period, or I'd rather go home early. And employers ask me, well, can I just let them do that? And the answer is no, because the California Supreme Court has said it is a health and safety issue. Same thing with these masks, with social distancing, with all of the new rules that we are seeing as a result of COVID 19, they really are health and safety issues. And it comes down to the employer being willing and prepared to enforce their policies.

I think that's such a great time for this podcast because that is true. And as we know, there's been a lot of public service announcements that the state of California has been issuing, encouraging and reminding individuals to wear a mask or you know, a bus, you know, some kind of cloth face covering that is sufficient to cover the nose and the mouth. And this is intended to protect others. And there are some studies now that are showing that it's actually you're protecting yourself as well. Now, I don't want to talk about science because it's all over the map when it relates to COVID 19. But the bottom line is a good thing to do, and I know you've probably heard this too. A common question is what happens when an employee isn't wearing a mask? What can we do?

Well, and here's the thing we first have to figure out, just like with any other policy violation or why is the employee not wearing a mask? If the employee is not wearing a mask because they have a medical condition and they need a reasonable accommodation, we've got to engage in the interactive process. So today I had a call with the Department of Fair Employment and Housing. We're going to be doing some joint webinars with them. And that was one of the issues we talked about, was the reasonable accommodation obligation related to COVID 19 and people wearing masks, social distancing, etc. Now, if what you find out is that the employee is just not wearing a mask because perhaps they're making a political statement or they just don't like it, well, then that's a policy issue. So it's very important for the employer to have a policy in the first place that says, hey, we expect you to comply with all of the COVID 19 rules and regulations, including anything we enact here in the workplace. And the bottom line is if you don't do it, you're going to be subject to discipline. I think employees have to know, even though we're getting some mixed messages in the media and there are some political issues out there, when it comes to your workplace, you have to follow the rules that the employer has set for you as long as those are appropriate rules. And certainly when you consider the Department of Public Health and the order that they co issued with the governor and with Cal OSHA regarding masks and saying that people in this state, quote, must unquote wear masks unless they meet some sort of an exception, this really is not an option for most people. And even if they can't wear the mask because of the medical condition, that doesn't mean they can just walk around the workplace exposing other people to this virus. So it's really important for the employer to communicate to employees, hey, we're trying to keep you safe. We're trying to keep our Community safe. And this is what we're doing.

I'm really glad that you mentioned exemptions and medical conditions, because that is one of the exemptions in the governor's guidance for using face coverings that he released back in June. June 18th. You know, it's a common question of, you know, if an employee says, well, I have a medical condition or a mental health condition or a disability that prevents me from wearing a face covering or a mask, can the employer ask for a doctor's note or some kind of medical certification to prove that's true?

Yes, and it really should be treated just like any other reasonable accommodation request. The difference is we now have a direct threat issue because of the virus and because we're in a pandemic right now, which is so funny to say, because I can't believe it just rolls off the tongue like that. We're literally in a movie right now, right? We're in this pandemic and everybody's health and safety is threatened. So it's even more heightened than a regular accommodation process. Because just because somebody has a medical condition that precludes them from being able to wear a mask doesn't mean they get to expose a bunch of people to the virus. We may have to find another way to get them in the workplace. We may have to let them telework. There may be other things we have to do. But it's very similar to when you're thinking about having a service animal come into a restaurant, for example, or a retail store. There's no absolute right to have that service animal. The service animal has to behave. The service animal can't go around, for example, biting people or relieving itself in aisle four. Like, that's not going to happen. So even though the individual has a right to an accommodation, there are going to be limitations on that. It is the exact same way with these masks. Even more so because we're in a situation where we've got this direct threat. There is, you know, as you said earlier, we don't want to talk about science because it's all over the map. I totally agree with that. But the Department of Public Health has said, listen, we think it's going to save people's lives if we require people to wear masks. That's all that you need to say, hey, look, this is a public health issue. This is a direct threat.

So well said and explained. Thank you for that. And the same is true with physical distancing as well. I think there's a common misconception, and I think We've talked about this before, that it's an either or. You know, either you practice social distancing at 6ft or more, or you wear a mask. But we're finding that it's really a combination. Practice physical distancing and wear a mask. And we're seeing, you know, a lot of it's an adjustment. Like I talked about, these are new social norms. How are there ways that employers can encourage and remind employees about the physical distancing guidelines and requirements?

Well, one of the things I think is important is to provide a visual. Literally get out your masking tape and mask off for each employee. This is sort of your zone, and nobody should be coming in this zone with or without a mask. By the way, they may walk by with a mask because they're in a common area, but really, nobody should come within six feet of you. So you should mask out the entire office. You should also, if you have a larger office, you have a lot of hallways, a lot of corridors. You should mask out which direction you want people to be traveling. So you minimize people being in this space. At the same time, you also want to just put up reminders. Of course, this is required in most counties where you post it on your door. We're social distancing. Everyone must wear a mask. But you also want to just remind people, hey, we know it's tough. You know, I have masks in my office, and I have to remember the minute I step out of my office, I need to put on my mask because I have a door that can close, right? So, you know, I started taking to wearing my mask on, one of my ears kind of dangling down. So I remember, you know, it's not the most attractive visual, but the truth is, it's just what you said. It's a new norm. It's a new expectation. We're not used to it. Like, I can't believe that I went to the store the other day and. And it didn't even dawn on me that everybody was wearing masks. Like, it's been a few months now. And so, you know, people are wearing masks voluntarily, many people, and we're in a situation where it's starting to feel normal, which is a little crazy, but it's true. So in the workplace, though, when you're up, down, up, down, up, down, going to the printer, going to the copy machine, trying to get things done, or waiting on a customer, meeting a guest, it's hard to remember. And I think we just have to have some grace, understand that people are going to make mistakes occasionally Let me.

Put it that way.

But we still have to, as the employer, be the enforcer. And it's not a role that every supervisor or manager likes, but it's a critical one.

And like everything, it starts at the top. Right. So it's incumbent on our managers, our supervisors, our executive team to, you know, wear the mask, adhere it. Just because they're part of an executive team doesn't mean that the rules don't apply to them. And it's about conformity. And we know with other things that eventually everybody conforms to the new requirements. And to me, this feels very similar.

That's exactly right. One thing I was going to add to that, Erica, is just this idea of the employer giving the employee the heads up. Right. It's really important that we're transparent about all of these expectations. For example, I had a client call who said, well, you know, the governor didn't issue this Department of Public Health order like his other executive orders. So is this really a law and do we have to follow it? Said, well, listen, it's not a law.

Right.

The legislature didn't pass it and the governor didn't sign it. But this is the Department of Public Health in Cal osha. So you don't follow it, you're going to get fined. It's an administrative issue. And certainly if someone were to get injured or ill because of your failure to comply with these practices, you got a liability issue on your hands. So I think people, rather than looking for a way to get out of it, should be looking for a way to deal with it.

That's fantastic. And I think that's the message for everything that we're going through related to COVID 19 right now is having to be very flexible, having to be very bendable, if you will, and able to pivot when needed in the direction that our agencies, our authorities are telling us to move. And the same is true with the physical distancing in the workplace and with the masks. One more thing that I want to address before we conclude the podcast today. So masks are now becoming kind of the new accessory, if you will. There's all sorts of different types of masks out there. Buff face costs. A lot of them have messaging on them, Jennifer, and we're getting questions about messaging on masks and whether we can prohibit masks that have certain decals or words or.

Imagery. For example, I ordered my husband a mask that looks like a dog snout, dog mouth. It's quite hysterical. You know, those kind of things. Is that appropriate for the workplace?

Well, it's such a Great question. And here's the thing. It's very similar to what we look at with other dress code or quote, uniform requirements. Right. You know, I can't wear a T shirt that says, you know, some sort of expletive or inappropriate comment. I can't wear a mask that says that either. Now, do people have a right to express their political views? Yes, certainly the National Labor Relations act, which is the federal law that allows employees to engage in collective sort of bargaining, conversation, looking out for each other. They, they get to, to express some views, but it's generally about the workplace. So if some sort of statement on a mask is going to violate your EEO policy, you don't have to allow it.

Right.

And you could certainly say we're not allowing any masks that have messages. Any messages. We don't care what the message is. What you have to be careful of is, okay, we're going to allow a pro President Trump mask, but we're not going to allow a pro Joe Biden mask. Like, you can't make content based decisions. They have to be content neutral. So you could certainly say you can wear any mask you want, but it can't have any messaging on it. Now, if you say to someone, you must wear a blue mask that matches the shirt you are wearing that we provide to you, you just created a uniform requirement and you're going to have to provide that mask. So don't get too specific about the color or the style or the design, but you're allowed to say, look, nothing with a printed message, nothing with an inappropriate graphic or logo or screen print on it.

That makes sense to me. Again, sometimes it's just going back to the basics. Taking Covid out and going back to the basics of what would you do in this circumstance to try and solve the puzzle.

That's exactly right, Erica. And here's the thing to think about from my perspective. When you're in a situation where things are changing as quickly as they are changing right now, and they are just absolutely craz, you're not going to have an answer to every single question you have. You're going to have to make some judgment calls. You're going to have to figure out, okay, how far do I want to go with this and what do I really want to do?

Right.

And that's part of what I want to think about as well, is we need to be careful that just because we don't have a really clear answer to something doesn't mean we still shouldn't try to comply with the law, because that's not where we're going. Which is, well, if it doesn't say so clearly, then we're just gonna do whatever we want. We need to exercise some common sense and really think about what our point is. Again, our point is workplace safety. We're trying to keep people safe and healthy. So if you recognize that and you think about that as being the goal, I think it just helps a little bit with what steps you would actually take.

Fantastic. Jennifer, that's great. Great, great best practices, great information, and always a pleasure to speak with you about these issues on the podcast.

Oh, for me as well. I love meeting with you and talking about these issues. It's a lot of fun for me too.

And thank you all for joining us on the Workplace. Please comment, share and subscribe to Cal Chambers podcast by visiting calchamber.com.

SAM.