COVID-19: Are Mask Policies Legal, and Should They Be Mandatory?

Employers have faced countless legal questions since the onset of the COVID-19 crisis. Layoffs, remote work, employee travel, and more all became immediate issues, almost overnight. As workplaces continue to reopen, another concern remains: implementing facemask policies. While proven to be effective in limiting the spread of the coronavirus, how legal are mandatory mask rules, and should employers consider them for their workplaces?

Are Employers Responsible for Keeping Employees Safe?

The Occupational Safety and Health Administration (OSHA) clearly states that “employers have a responsibility to provide a safe workplace.” During COVID-19, this mandate looks a little different. 

A publication issued by OSHA discusses several steps for employers to prepare for coronavirus in their workplaces. The instructions are explicitly proactive, saying, “[t]o reduce the impact of COVID-19 outbreak conditions on businesses, workers, customers, and the public, it is important for all employers to plan now for COVID-19.” 

Likewise, the CDC issued recommended safety actions at the beginning of the pandemic. This guide provides employers with several best practices for maintaining healthy work environments, which can be broken down into four main categories:

1. Promote Healthy Hygiene Practices
2. Intensify Cleaning, Disinfection, and Ventilation
3. Encourage Social Distancing
4. Limit Travel

Are Mask Policies Legal? Should They Be Mandatory?

Yes, according to a COVID-19 FAQ published by OSHA, “employers have the discretion to determine whether to allow employees to wear cloth face coverings in the workplace based on the specific circumstances present at the [worksite].” This, of course, depends on the nature of the work and worksite, as masks may present or exacerbate hazards in some occupations. 

With that said, employers are not required to provide cloth face coverings to employees. Unlike N95 masks—which are typically used in healthcare settings—cloth face coverings aren’t considered personal protective equipment (PPE), which is subject to OSHA standards. 

The CDC reiterated the recommendation for face coverings by saying that “all people 2 years of age and older wear a mask in public settings and when around people who don’t live in your household, especially when other social distancing measures are difficult to maintain.” This includes most workplaces. 

Additionally, the Equal Employment Opportunity Commission (EEOC) states that employers “may require employees to wear protective gear (for example, masks and gloves),” as well as observe other infection control practices. There are some exceptions, including employees with reasonable accommodations under the Americans with Disabilities Act (ADA).

Also be sure to include measures to protect employees' health during the reopening. The CDC recommends 10 tips, including actively encouraging sick employees to stay home, implementing social distancing, and performing routine cleaning. Mask mandates can also be included.

How HR Can Implement a Mask Policy

To implement a mandatory mask policy for your workplace, follow these three steps:

1. Review Your Return-to-Work Readiness: How ready is your team to return to the office? Use the linked checklist to identify check common COVID-19 compliance questions and answers before reopening your office. 
2. Develop a COVID-19 Safety Plan for Your Workplace: Steps should include identifying an onsite workplace coordinator, reexamining leave policies, reviewing these policies with team members, and identifying essential staff and business functions, among other measures. Mask mandates can be incorporated into the safety plan.
3. Communicate Updates Using a Return-to-Work Letter: When sharing pertinent details about your return-to-work schedule, HR can include key processes that have been implemented to keep workers safe. This should include the mask requirement.