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Uber, Lyft Optional Masking Puts Risk Calculus on Drivers (1)

April 19, 2022, 7:37 PMUpdated: April 19, 2022, 8:43 PM

Uber Technologies Inc.‘s and Lyft Inc.‘s decision to end masking requirements after a judge halted a federal mandate for airplanes, trains, and other public transportation is now putting drivers in the position of deciding whether they want to pick up maskless passengers.

The ride-hailing giants, which announced their new policies shortly after the Florida federal court’s order, said drivers can refuse passengers who don’t want to wear masks. They also eliminated their no-front seat policies.

But the situation feeds into a long-standing debate over the level of control that these drivers, who are classified as independent contractors rather than employees, have over their working conditions.

“I can see this causing headaches for Uber and Lyft,” said Shannon Liss-Riordan, a Boston-based attorney who represents drivers challenging gig economy companies.

“The drivers are not really going to feel like they can turn down rides from passengers not wearing masks. They will all be afraid this will affect their scores and also their passenger rating. Uber does still terminate drivers who do not keep a high enough passenger rating,” she said.

Uber and Lyft signaled their drivers still have options despite the end of the companies’ mask mandates.

“We have always encouraged riders and drivers to cancel trips if they don’t feel safe and canceling a trip for safety reasons does not count against a driver’s cancellation rate,” Uber spokesman Andrew Hasbun said in a statement provided to Bloomberg Law.

In response to a request for comment, a representative for Lyft referred Bloomberg Law to the company’s earlier statement about ending its mask mandate.

Gig Workers Rising, an advocacy group organizing app-based workers, said that drivers are concerned about the changes.

“Uber and Lyft are playing politics with our lives. I don’t like the idea of people getting in my car without a mask on,” said Rondu Gantt, a San Francisco Bay Area ride-share driver and organizer in the group. “We’re in a confined space and if a rider refuses to wear a mask and we ask them to leave the car, we’re at risk of getting a bad review and possibly deactivated,” he said in a statement.

Existing Issue

Many drivers say mask rules already had become harder to enforce as more cities and states pushed to reduce Covid-19 safety requirements and more workplaces lifted mask mandates.

The new policies also come as a labor shortage and rising gas prices have led to increased tension and reports that drivers have stopped working for the apps. The companies have said there hasn’t been a sharp drop in workers, year over year.

Jason Munderloh, an app-based driver who also works with Gig Workers Rising, thinks the companies should have consulted workers on the mask update.

“It shows yet again they never cared about worker safety, and refuse to take responsibility for the drivers who bring in billions of dollars in revenue,” he said in a statement. “Workers like me will bear the brunt of any and all future COVID waves, we’re on the frontlines without a safety net. This top down decision is an example of us taking risks as a core part of their business model.”

Driver deactivation, which bans drivers from accessing the platform, has been the subject of litigation and driver complaints against the companies. Persistent lawsuits in recent years also say the business model of relying on contractors to perform the work flouts wage and hour laws. Employees, unlike contractors, receive benefits such as minimum wages and overtime.

The test courts use to determine proper classification often leans on how much control the company has over working conditions, something courts have debated for years. It’s unclear whether the mask issue would tip the scales.

“When you are examining whether someone is an employee or contractor, there are bigger fish to fry: Are you requiring someone to pick up a passenger without a mask,” said Rich Meneghello, co-chair of the gig economy practice group of Fisher & Phillips LLP, an employer-side law firm.

“The debate will more likely center around the old classics: are they forced to take rides and work at certain times and in certain areas,” he said. The absence of a mask mandate “doesn’t seem to be a tipping point from an employment law standpoint.”

Drivers Have Options

Both ride-hailing apps have said that the root of their business model is to provide flexible working conditions for drivers, who can set their own schedules and have leeway to pick up passengers within their own time frames.

“Remember: many people still feel safer wearing a mask because of personal or family health situations, so please be respectful of their preferences. And if you ever feel uncomfortable, you can always cancel the trip, " Uber said in its announcement about lifting its mask mandate.

“While riders and drivers can always cancel any ride they don’t wish to take, health safety reasons—like not wearing a mask—will no longer appear as cancellation options in the app,” Lyft said.

Meneghello believes the companies will provide a lot of flexibility if they receive reports that drivers refused rides for unmasked passengers. But even in that event, this issue alone shouldn’t determine whether Uber and Lyft are levying too much control over their drivers, he said.

“If you are a flight attendant, you can’t walk off the flight because passengers have no masks on today. An Uber driver has a bit more flexibility in that regard,” he said. “The more control a company levies, the closer it comes to an employee relationship. That’s the touch point of all this. It doesn’t seem as one extra factor, especially in a country that there is so much uncertainty and so many differences why they may or may not be wearing masks.”

Safety Concerns

Safety continues to be a concern for gig workers like Uber and Lyft drivers.

At least 50 drivers have died on the job since 2017, according to a recent report from Gig Workers Rising. Because of their business model, the companies avoid liability and paying out workers’ compensation, which is guaranteed to employees, the organization said in the report.

Uber and Lyft have argued in court against liability for assaults and accidents.

Lifting the mask mandate is just the latest example of Uber and Lyft exerting control over their drivers, despite classifying them as independent contractors, said Erin Hatton, an associate professor at the University of Buffalo who focuses on labor, law, and social policy.

“This sustains a precarious position for the drivers, and intensifies it in this ongoing health crisis,” Hatton said. “They are driving in a small space, and there is no way they can avoid exposure if someone gets in their car.”

Uber and Lyft have tried to play it both ways, she added. While drivers can refuse rides or eject people, drivers also have been deactivated for canceling too many rides. True independent contractors should have complete control over their work and working conditions, she said.

“That means having full autonomy over who they pick up and if they finish a job,” Hatton said. “It’s a confusing legal landscape. And this issue adds to the arsenal of examples.”

(Updated to include statements from drivers affiliated with Gig Workers Rising.)

To contact the reporter on this story: Erin Mulvaney in Washington at emulvaney@bloomberglaw.com

To contact the editor responsible for this story: Laura D. Francis at lfrancis@bloomberglaw.com; Melissa B. Robinson at mrobinson@bloomberglaw.com