Employer Mask Mandates Encounter Employee Resistance

Allen Smith, J.D. By Allen Smith, J.D. August 5, 2021

​When it comes to mask mandates, pushback from some employees as well as concern from others if mandates aren't in place are two things employers must consider as they weigh whether to follow the U.S. Centers for Disease Control and Prevention's (CDC's) recent mask recommendations in areas of substantial or high transmission of the coronavirus—or even in areas that aren't hot spots.

The CDC now recommends vaccinated people resume mask wearing in indoor public spaces in locations with substantial or high COVID-19 transmission rates. This includes schools. It also recommends that everyone in grades K-12 wear a mask indoors, including teachers, staff, students and visitors, regardless of vaccination status.

Further, wearing masks indoors is also recommended for all people—including those who are vaccinated—in counties that either average 50 or more coronavirus cases per 100,000 residents or have a test-positivity rate of 8 percent or higher.

"One of the biggest issues employers are likely to face is resistance to the CDC recommendations caused by the current COVID-19 backslide," said Anthony Mingione, an attorney with Blank Rome in New York City. Resistance will likely be strong and come from multiple segments of the workforce, he added.

"Employees in locations that are not high-transmission areas may resist the reimposition of restrictions," he noted. So, too, may vaccinated workers.

"And resistance from those employees who have consistently expressed vaccine and mask skepticism shows no signs of abating," Mingione said.

Employers have a variety of tools they can use to handle resistance. Although none is a panacea, the first tool is education, he said.

Andrew Turnbull, an attorney with Morrison & Foerster in Washington, D.C., explained, "Having a communication plan is key, focusing on the company's priority to protect all employees and the larger community from the spread of COVID-19."

Employers also can use disciplinary measures to ensure compliance, provided they do not violate state or local laws and so long as policies aren't applied in a discriminatory manner, Mingione said.

Pandemic fatigue is a real concern, and its effects on the workforce can't be ignored, he stated. "It is critical that employers see the silver lining," Mingione explained, "which is that those who continue to make decisions that value all of their contributors and stakeholders will be able to foster loyalty and maybe even develop a competitive advantage."

Monitoring Transmission Rates

Because the number of COVID-19 cases is rising nationwide, employers should continuously monitor the transmission rates in their area, said Ruth Rauls, an attorney with Saul Ewing Arnstein & Lehr in Princeton, N.J., and New York City.

"While the CDC guidance is just that—guidance—as the delta variant continues to spread, monitoring changing mandates and orders from state and local governments and health authorities related to COVID safety precautions and vaccines is a must," she said.

Absent state or local mandates requiring mask wearing, employers should consider the needs and configurations of their workplaces when determining whether to impose mask requirements, she added.

Employers have certain obligations to protect the health of employees in the workplace. The updated CDC guidance supports that wearing masks in indoor places in areas of substantial or high transmission is one way to protect the health of employees, Rauls noted.

"If employers are located in hot spots, it would be prudent to require masks in accordance with CDC guidance," she emphasized. "Further, in light of the rapidly changing landscape and rising infection rates due to the delta variant, even employers that are not in hot spots should ensure they can pivot their operations, as those employers may quickly find some of their locations in areas of substantial or high transmission."

"Employers who choose to follow the CDC recommendations," said Hugh Murray III, an attorney with McCarter & English in Hartford, Conn., "can make wearing a mask a condition of employment. If a worker resists wearing a mask, the employer should determine whether there is a disability that may require a reasonable accommodation." If not, employees should be sent home until they comply with the company's rules or are disciplined or fired for insubordination, he said.

More Widespread Adoption of CDC Guidance

One way to simplify policies is to follow the most restrictive guidelines, including the most recent CDC guidance, in all jurisdictions, Rauls added. "However, doing so could lead to unhappy or uncooperative employees," she said.

Angelo Filippi, an attorney with Kelley Kronenberg in Fort Lauderdale, Fla., said that nonetheless, "all employers should follow CDC guidelines."

"Employers that are not currently in a hot spot may see that change shortly," Mingione said, "and employers with multiple locations are likely have at least some of their facilities in high-transmission areas already. Applying the CDC guidelines across all locations now will allow employers to get out in front of the COVID-19 rebound that appears to be already upon us. And from an administrative standpoint, applying CDC guidelines across the board will eliminate the need to have multiple paradigms and monitor transmission rates on a location-by-location, week-by-week basis."

Mary Kathryn Curry, an attorney with Polsinelli in Chicago, said, "Employees may not know before showing up to work whether they are in a hot spot until they arrive, perhaps without their mask in hand."

But, Rauls said, after the last year and a half, employers are much more experienced at making adjustments as needed to protect their workforce. "They are now going to have to put that experience to the test as we once again face new state and local orders and changing CDC guidance."

[Want to learn more? Join us at the SHRM Annual Conference & Expo 2021, taking place Sept. 9-12 in Las Vegas and virtually.]



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