Are essential employees required to wear masks in the workplace?

Excerpted from Lexology by Crowell & Moring LLP

On Friday, April 3, 2020, the Centers for Disease Control and Prevention (CDC) issued guidance recommending that individuals wear cloth face coverings, or masks, to help prevent the spread of COVID-19. The guidance “recommends wearing cloth face coverings in public settings where other social distancing measures are difficult to maintain (e.g., grocery stores and pharmacies) especially in areas of significant community-based transmission.” The CDC noted that it does not recommend the use of surgical masks or N-95 respirators, which must continue to be reserved for healthcare workers and other medical first responders. Instead, it encourages the use of simple cloth face coverings, including those fashioned from household items.

Though the CDC’s recommendations are not mandatory, several localities have already deemed the use of face coverings compulsory in certain circumstances, including in the workplace. In San Diego County, all employees who may have contact with the public in food service, grocery stores, and other named industries are required to wear face coverings. Other localities have gone further: Riverside County, California, requires all persons – including essential workers – to wear face coverings. New Jersey’s Hoboken City likewise requires all essential workers to wear face coverings while performing job functions. The orders define “face covering” broadly to include any material that covers the nose and mouth, including scarves, bandanas, neck gaiters, and even homemade coverings fashioned from t-shirts or towels.

The CDC’s new guidance raises several important questions for employers who continue to operate essential businesses. First, as with the stay at home orders that were enacted in waves over the last two weeks, will states and localities enact new orders mandating the use of face coverings in the workplace? What options exist for employers that cannot obtain face coverings for their employees due to scarcity in the market? May employers lawfully mandate that their employees bring their own face covering to work? May an employer lawfully discipline or send home – with or without pay – an employee who fails to comply with a newly instituted face covering requirement? The answers to these questions are situational and will likely evolve as states and localities continue to seek ways to flatten the curve during the global pandemic.