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April 17, 2020
On April 15, 2020, the Pennsylvania Secretary of Health issued an Order with new health and safety measures applicable to all businesses authorized to continue in-person operations within the Commonwealth. Among the new safety measures is the mandate that, effective 8:00 p.m. on Sunday, April 19, 2020, employers provide masks and require employees to wear masks while at work.
The mask requirement is straightforward, with only a single exception for eating and drinking. Specifically, starting Monday, employers will be required to:
“provide masks for employees to wear during their time at the business, and make it a mandatory requirement to wear masks while on the work site, except to the extent an employee is using break time to eat or drink, in accordance with the guidance from the Department of Health and the CDC. Employers may approve masks obtained or made by employees in accordance with Department of Health guidance.”
What if an employee refuses to wear a mask because previous public health guidance suggested that a mask will not protect him/her from COVID-19?
It is important to reiterate to employees a phrase that the Commonwealth has coined: “My mask protects you, your mask protects me.” In other words, the purpose of the masks is not to protect the wearer, but to protect everyone around the wearer.
What if an employee refuses to wear a mask due to their own medical condition?
Another section of the Commonwealth’s Order includes a masking requirement for customers of businesses serving the public. However, the customer requirement exempts customers who cannot wear a mask due to a medical condition (and no proof of the medical condition is required). No such medical exemption exists in the Order for employees. If a medical reason exists that precludes an employee from wearing a mask, employers should discuss with the employee whether a reasonable accommodation is necessary and/or whether the employee should be on leave while the mask requirement is outstanding.
What if an employee refuses to work because of fear of infection from a customer who is not wearing a mask?
Employees are entitled to refuse to work only if they believe they are in imminent danger. The Occupational Safety and Health Administration (OSHA) defines “imminent danger” as including “any conditions or practices in any place of employment which are such that a danger exists which can reasonably be expected to cause death or serious physical harm immediately or before the imminence of such danger can be eliminated through the enforcement procedures otherwise provided by this Act.” See § 13(a) of the OSH Act. The threat must be immediate or imminent; thus, an employee must believe that death or serious physical harm could occur within a short time. Asking a health care worker to perform his/her duties without protective equipment may meet this standard. Many other work conditions likely would not. However, employers must evaluate their own workplaces to determine when it may be permissible for an employee to refuse to work.
Furthermore, the National Labor Relations Act (NLRA) may protect employees from discipline or termination in this situation. Section 7 of the NLRA protects employees who engage in “protected concerted activity for mutual aid or protection.”
What if an employer cannot secure masks from any supplier?
Mask supplies are limited. Though employers should work to obtain adequate commercial masks for their employees as supplies become available, the Pennsylvania Department of Health suggests the use of alternative face coverings, e.g., bandanas or scarves, if necessary. It also is reasonable to ask employees to bring their own masks to the workplace, when possible.
Do employers have to provide more than one mask per shift?
Best practices dictate that employees have more than one mask available per shift, and it can be a combination of employer-provided masks and homemade ones. Employees should treat their mask like a diaper—if it is wet or soiled, it needs to be changed.
Below are some helpful links:
We will continue to monitor the issue for any new guidance from Governor Wolf or the Pennsylvania Department of Health. In the meantime, we are here to help employers address any issues that might arise in the application of this masking requirement.