As people were literally waiting in line to receive their COVID-19 vaccine on March 2, Texas Governor Greg Abbott announced an end to the mask mandate and COVID-19 operating limits in Texas. His new Executive Order will go into effect March 10.
Governor Abbott still “strongly encouraged” individuals to wear face masks and said no Texas governmental entity could mandate a face covering except in counties where the number of COVID-19 hospitalized patients exceeds 15% of the total hospital capacity.
The governor’s controversial Executive Order elicited strong headlines not only in Texas, but across the U.S. Thousands of Texas residents immediately reposted their Facebook profile pictures with the message, “I choose to #WearAMask.” Anti-maskers, and there’s a large number in the Lone Star State, celebrated the announcement, and on Texas Independence Day to boot!
One of the first questions we asked at GroupOne Background Screening was whether employers can continue to require employees and customers to wear masks. Please note, even with the end of the mask mandate, employers can continue to require masks from both employees and customers alike. This week, The Wall Street Journal reported that some of the biggest U.S. retail, theater, hotel and restaurant chains in Texas announced they will continue to mandate mask wearing.
It will certainly become more challenging for businesses to justify mask wearing to customers in the absence of governmental prohibitions, and we suspect there will be quite a few nasty arguments igniting publicly across the state. Most official announcements reveal many businesses, in spite of Governor Abbott’s zealous proclamation, will continue to require mask wearing.
It also appears the Occupational Safety and Health Administration (OSHA) will soon issue an emergency temporary standard this month that requires mask wearing in certain situations. While such an amendment could be vulnerable to judicial challenge, OSHA’s general duty clause would still apply if OSHA can show that the failure to mandate masks presents a hazard to employees.
As reported last month, OSHA has already issued guidance that recommends employers assess exposure risk in their workplace and consider measures such as mask wearing to reduce the risks. A failure by employers to follow this guidance could be the basis of a general duty clause violation.
Given the almost universal anxiety many workers feel about returning to work, requiring masks and taking other precautions to protect them from exposure to COVID-19 is a good way for employers to demonstrate they care about the welfare of their employees. In spite of Governor Abbott’s rosy outlook, the pandemic will likely be with us for the remainder of 2021. You can never be too safe during this very dangerous time.