“Can I require my employees to wear masks even though the Governor of my state banned mask mandates”?
-Employers in States Buzzing about “Mask Mandates”
Employers frequently ask me if they can mandate that their employees wear masks per state guidelines even though their governor implemented a “mask mandate ban“. Despite so-called “mask mandate bans”, most employers are legally obligated to encourage employees to wear masks in certain situations and in accordance with current federal and state guidelines (ie. where social distancing can’t be maintained, where someone’s vaccination status is unkown, etc.). To see federal and state guidance regarding masks click here. Failing to do so makes employers vulnerable to a whole host of costs that threaten the sustainability of their business.
The cognitive dissonance between the implicit and explicit messaging surrounding so-called “mask mandate bans” has been a source of confusion to employers and the public alike. The goal of this article is to provide clarity with regard to the implications of these laws in the workplace and lack thereof.
“Mask Mandate Bans”- What They Are & What They Are Not
- Thus far, “mask mandate bans” don’t apply to private companies.
- For example, the Governor of SC issued an executive order which specifies that private businesses, buildings controlled by the legislature and judicial branches can impose restrictions such as mask-wearing in accordance with the CDC guidelines.
- The SC “mask mandate ban” only prohibits municipalities, counties and political subdivisions of the state from imposing mask mandates.
- Per this Executive Order, public schools are banned from requiring mask mandates, but private schools are not. The implications of liability associated with this as it pertains to growing trends in negligence and wrongful death cases remains to be seen.
- For example, the Governor of SC issued an executive order which specifies that private businesses, buildings controlled by the legislature and judicial branches can impose restrictions such as mask-wearing in accordance with the CDC guidelines.
- “Mask mandate ban” laws and executive orders contain language that encourage the public to follow federal and state guidelines (ie. wear masks, obtain vaccinations, socially distance, etc.)
- For example, the first six pages of the SC Order details how the order itself is predicated on the belief that the public and employers will take initiative to follow federal and state Covid-19 prevention protocols.
- It also explains that the Executive Order is based on the assumption that COVID-19 transmission levels will remain low because of greater compliance with vaccinations and compliance with best practices from the SC DHEC.
As with all laws, there is often a disconnect between the actual wording in the laws themselves and the public discourse surrounding them. Employers are advised to read applicable laws instead of relying on others interpretation of them to guide your workplace policies. Consult with human resources professionals and legal counsel when developing, implementing and enforcing workplace safety protocols. Read more about steps employers can take to minimize Covid-19 liabilities in the workplace here.
©Denise Scotti-Smith 2021. All Rights Reserved
Employers who inquire about “mask mandate bans” are concerned about the following–>
- Employers want to mitigate increased pandemic-related legal liabilities and insurance claims regarding workplace safety from employees and customers. See current lawsuit and OSHA violation trends here.
- Employers want to try to minimize an adverse financial impact to their business from the spread of illness between employees which leads to absenteeism and excess paid time off, lost productivity, increased health insurance premiums, workers compensation and other insurance costs. If health insurance premiums increase based on the health history of their employee pool, it will adversely impact their ability to compete for employees in the labor market. Read about the financial impact of Covid-19 on workers compensation here.
- Employers want to assure their customers and employees that they are in a safe environment so that they can sustain their business. This is especially true of customers and employees with underlying medical conditions which may undermine the effectiveness of their vaccines.
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