Login | September 25, 2020

Attorneys advise on enforcing face-covering policies

Legal News Reporter

Published: September 11, 2020

Of all the measures that have been implemented or encouraged to help stop the spread of COVID-19, legal experts say the most controversial by far has been face coverings. As the debate over their effectiveness continues, more business owners are requiring employees and shoppers to wear them while working or patronizing their establishments.
Despite objections by some workers and customers, Roetzel & Andress shareholder Karen Adinolfi said, generally speaking, employers do have the legal right to mandate such policies and can discipline employees and refuse service to patrons who won’t comply.
“Every employer is allowed to enforce its own policies and directives,” said Adinolfi, who focuses her practice on employment law matters. “A face covering policy is not any different than any other type of dress code that an employee is required to follow.
“The only exception to this rule is for an employee, who has a documented medical condition that would prevent or inhibit the individual from wearing a mask or other face covering,” she said. “In Ohio, face coverings have been required for many employers, even before Gov. DeWine issued the mandate.”
Adinolfi said educating one’s employees is the key to enforcing this and other policies, especially in cases where an individual has been working from home and is preparing to return to the office.
“Employers should be utilizing email and video chats to communicate with workers before they come back so they know what to expect,” she said.
Chaz Billington, a partner in the Cleveland office of Vorys, Sater, Seymour and Pease said businesses should have a written policy detailing the type of face covering that is acceptable and where and when it must be worn.
“The policy should be distributed to all employees and signs should be posted at the entrance and throughout the building,” said Billington. “I advise my clients to have employees sign off on the policy, acknowledging that they have read and agree to its terms and conditions.
“I also advise my clients to meet with employees and go over the policy in person and answer their questions to eliminate any ambiguity about what is required.”
Billington said he recommends that the company designate a manager or a health and safety person to monitor the office to ensure that everyone is following the rules.
“In cases where there are violations, I would first remind the worker what the policy states and offer to supply the person with a mask. In that regard, I would make sure to have an ample supply of face coverings on hand at all times, in case workers lose their masks or forget to bring one.”
In addition to having supervisors and managers monitor compliance, Adinolfi said workers should be encouraged to report violations. “We are not looking for snitches, but it is important that this policy, like all others, is uniformly enforced to avoid resentment among employees and protect the workforce.”
When it comes to disciplinary actions, Billington and Adinolfi agree the measures need to be implemented on a progressive basis and thoroughly documented.
“You might start with a verbal warning,” said Adinolfi. “If the same employee continues to violate the policy and cannot demonstrate a medical reason for doing so, a brief suspension may be in order, and if the behavior still persists, possibly termination.”
In cases where a worker does have a documented medical condition such as COPD (Chronic obstructive pulmonary disease) or Asthma that would be exacerbated by wearing a face covering, employers must undertake an interactive process to see if they can come up with an alternative that would enable the individual to continue to perform his/her duties.
“Under the Americans with Disabilities Act, employers must work with employees who have certain qualifying medical conditions to see if an accommodation can be made that would not put coworkers or the public at risk,” said Adinolfi. “For example, if the employee works with customers perhaps that person could be transferred to a different division, where he or she would be socially distant from other workers.
“If the individual is an employee whose duties can be performed remotely, the employer could allow that employee to work from home.”
Billington said it’s important to exhaust all accommodation options before considering a more drastic move such as suggesting that the employee utilize existing PTO (Paid Time Off) or apply for unpaid leave through the FMLA (Family and Medical Leave Act).
“I would suggest reviewing CDC guidelines to see if it is possible to find an alternative to a traditional face covering, such as a face shield,” he said. “Putting someone out of work because of a medical condition without carefully analyzing the situation is very risky, legally speaking.
“Any business that finds itself in such a position should definitely speak to an attorney before taking action. If an employee is laid off, that person would almost certainly be entitled to unemployment at the very least.”
In addition to making medical exceptions, Billington said there might be instances where an employee could make a case for a religious accommodation.
“I don’t know of anything like this happening personally, but given the numerous religious practices in the U.S., it is possible a business could be faced with such an issue, which must also be given careful consideration, including consulting with an attorney,” he said.
In the case of customers and shoppers, attorneys said private property owners do have the right to deny entry to anyone who refuses to wear a face covering, as long as the policy is clear and there is adequate signage.
“Businesses that have websites should have their policies posted on the main page so there are no surprises when customers arrive,” said Billington. “They should also post policies on their Facebook page and other social media sites.”
“Just like in the workplace, property owners do need to provide alternatives to those who have a medical condition,” Adinolfi said. “For example, having the groceries delivered to their cars or homes or suggesting that someone shop for them.”
Like workplace policies, she said managers and workers should do their part to ensure compliance, with security in place to deal with individuals who refuse to cooperate.
“In the end, it comes down to the same thing as a ‘No Shirt, No Shoes, No Service’ policy, where customers who do not follow the rules are refused service,” she said. “The only difference is there is more resistance to this policy.”