By Executive Order of Governor Andrew Cuomo, New York businesses are now required by law to provide face coverings for all employees who are currently in contact with customers or members of the public. Construing this requirement broadly, and in the absence of further guidance from the State, companies would be hard-pressed to find a position that would not meet these conditions. This is particularly so given it is unclear whether the Executive Order includes travel to and from the workplace.
While the new law does not go so far as to require medical grade surgical masks or N95 masks, it likely imposes an obligation on employers to provide appropriate personal protective equipment (“PPE”)—at the employer’s expense—based on the job functions of each employee. The failure to do so may not only subject the business to penalties under the Occupational Safety and Health Act (“OSHA”) but also Workers’ Compensation Claims and/or civil litigation.
At a minimum, the law requires employers to provide a face covering made of cloth or other material that covers one’s face and nose. The Center for Disease Control (“CDC”) has established five criteria for face coverings:
· Should fit snugly but comfortably against the side of the face;
· Be secured with ties or ear loops;
· Include multiple layers of fabric;
· Allow for breathing without restriction; and
· Be able to be laundered and machine dried without damage or change to shape
In light of the above, the employer may even be responsible for the cleaning and maintenance of the face covering in order to ensure that employees are reasonably protected from exposure and not using contaminated face coverings. To do so, employers may consider reimbursing employees who maintain their own face coverings. Different jurisdictions may impose specific guidance as to the frequency with which face coverings should be cleaned or replaced.
Employers may be aware that we are in the midst of a nationwide shortage of PPE, and even when equipment is commercially available, it may be an at an extreme price markup. If reasonable efforts to obtain PPE fall short, the CDC offers tutorials on its website on how to make homemade face coverings. A better option, however, may be to provide a stipend to employees and allow them to obtain their own face coverings. This would avoid any problems with trying to purchase face coverings in bulk and ensure that employees are permitted to express a personal preference for comfort.
Business are responsible not only for equipping their employees, but also ensuring that employees are wearing appropriate face coverings when serving in the capacities specified in the Executive Order, absent a properly vetted request for a reasonable accommodation which balances public safety concerns as part of its reasonable accommodation analysis. Any refusals may be met with disciplinary measures. Employers must be careful to apply any disciplinary action consistently to avoid discrimination claims.
As we have discussed, face coverings are only one component of safety measures employers should be thinking about—or in this case required to implement—in order to reduce their exposure to civil fines, claims, and lawsuits arising from the COVID-19 crisis.