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Changing Mask Guidance Confuses Employers and Workers on Safety

July 28, 2021, 10:00 AM

Liisa Luick worked through the height of the Covid-19 pandemic lock down as a sales associate in the men’s department at the Macy’s department store in Lynnwood, Wash. Throughout that time she’s routinely masked-up even after face coverings became optional there.

Recalled to work in June 2020, Luick said in a phone interview that she and her colleagues “came back to a mask requirement that was never really enforced.” “We kept good practices and we tried to keep distance between us and the customers, there were certainly a segment of customers who were not going to mask.”

The vaccines’ apparent efficacy has dialed down the fear for Luick and her colleagues, she said, “but every day we run into people that say they’re not vaccinated and we run into people in the community who flat out have the virus.”

And there’s the rub. With coronavirus mutations spreading, particularly among those who decline inoculation, employees like Luick and others across the U.S. are receiving ambiguous signals from their employers about whether to don protective face coverings. And it’s not as though the employers have one-size-fits-all answers either.

Asked for the company’s guidance, Macy’s Inc. spokeswoman Blair Rosenberg pointed to the retailer’s Covid-19 worker safety policies, which state that all workers are provided masks. “Depending on state or local mandates, they may be required to wear them at all times, or may do so by choice.” Other national chains, including Starbucks Corp., Target Corp., and Walmart Inc., have adopted similar stances.

The Centers for Disease Control and Prevention said Tuesday it is updating its guidance on indoor mask-wearing for vaccinated individuals along similar locational lines, based on virus infection rates. That agency’s action came after Los Angeles County became the first county in the nation to require people to wear masks in public again beginning July 17. New Orleans followed with an in-door mask advisory July 21, and on the same day Las Vegas’ Clark County Commission issued an emergency mandate for all indoor government workers to don masks.

Some management-side attorneys say employers and workers have been confused over whether to impose mask rules and that the federal Occupational Safety and Health Administration has been slow to adopt changes. “Practitioners like me see it akin to sleeping next to an elephant, anytime it rustles it wakes you up,” said Courtney Malveaux, a workplace safety lawyer with Jackson Lewis P.C. in Richmond, Va.

“States went all over the place,” after the CDC said in May that fully vaccinated people no longer needed to mask up while indoors, said Edwin Egee, vice president of government relations for the National Retail Federation. “In Oregon our members were required to know the vaccination status of employees as well as customers—that’s a recipe for disaster. Meanwhile in Montana we were precluded from asking employees about their vaccination status.”

Masking Uncertainty

The federal OSHA’s masking recommendations also have evolved as infection rates rose and fell. While the agency never issued an emergency temporary standard with concrete workplace rules regarding the virus for all workers, it did for private health-care providers. OSHA also rolled out a National Emphasis Program in March targeting industries that posed the highest risk of mass infections, like the health-care, meatpacking, and warehousing industries.

But earlier this month, the agency revamped that March NEP “due to the issuance of its emergency temporary standard for COVID-19 in healthcare” and refined its focus to programmed inspections in the health-care and other non-health-care industries, like meatpacking and restaurants. A search of OSHA’s Covid-19 complaint database shows that since the start of the pandemic, at least 4,754 workers have made complaints to the federal safety regulator about the lack of mask rules in the workplace.

OSHA spokeswoman Denisha Braxton said the agency updated that program “to better align with the overall reduction of COVID-19-related risks in many industries and the CDC’s latest COVID-19 guidance.”

“The agency also issued recommendations to assist employers in preparing their workplaces to minimize transmission of the virus and help make determinations about using masks and other controls,” she said in an email. OSHA is reviewing the CDC’s Tuesday guidance, Braxton added.

The lack of consistent, uniform federal masking guidance is itself a problem, said attorney James J. Sullivan, a former chair of the Occupational Safety and Health Review Commission. Employers look to state and local regulations because the U.S. government has “punted” on the decision, he said.

Many employers prefer when local and state governments issue mask mandates so they aren’t left to make up their own face-covering policies, said Sullivan, now an attorney at Cozen & O’Connor. “If a private employer resides within a local government that mandates mask, they are saying ‘great, you took this issue off my back,’” he said.

Commercial Scene

Many U.S. businesses have been handling mask rules largely according to local and state mandates.

Target stores no longer require fully vaccinated customers and workers to wear masks, except where it’s required by local ordinances. “Face coverings continue to be strongly recommended for guests and team members who are not fully vaccinated and we continue our increased safety and cleaning measures, including social distancing, throughout our stores,” spokeswoman Lauren Frank said in an email.

Walmart adopted that policy, too, but with an additional incentive. The company offers cash bonuses to workers to get vaccinated, spokesman Tyler Thomason said via email.

But Peter Naughton, a 45 year-old Baton Rouge, La., Walmart associate, said his company doesn’t enforce its mask rule and the only way to do so is for the state government to mandate requiring face coverings for all. “They’re not keeping us safe. They’re putting us in danger,” he said, adding that Walmart could keep its workers safe by hiring additional personnel to enforce a mask rule.

Thomason didn’t immediately respond to a request for comment on Naughton’s complaint.

Starbucks this month decided that “fully-vaccinated partners who disclose now have the option to remove their facial covering while working,” said Jory Mendes, a company spokesperson.

“I think the Delta variant is a sort of wake-up call in the sense that everyone wants this virus to go away, but the fact is until there is not a threat to the well-being of workers, measures need to be put into place,” said Marcy Goldstein-Gelb, co-executive director of the National Council for Occupational Safety and Health. Masks should continue to be a part of employers’ safety plans, she added.

“We firmly believe that every business needs to develop a comprehensive plan to minimize risks to workers in every workplace,” Goldstein-Gelb said.

Communicating with Workers

“We’ve seen concern in how are people going to feel coming back to the workplace,” said Kristin R.B. White, a safety attorney at Fisher Phillips LLP. “I advise firms to have a lot of communication with workers, increase training, talk about safety protocols and the new policies. If it makes them more comfortable to wear a mask, it’s their right to do so.”

Communicating with employees about their comfort level is imperative, White said, because for some workers wearing a mask “may not always be possible.” She warns however that open lines of communication can create liabilities for an employer, “if you’re asking workers about concerns and don’t take any of them into account, there could be some risk there as you’re rolling out your own policy.”

The challenge will be determining policies to deal with the virus as more workers return to work and the Delta variant proliferates across the U.S., said Jackson Lewis’ Malveaux.

“You have people who are resistant to the vaccine and larger employers have a difficult time determining who is and isn’t exempt from a face cover, so they’re not out of the woods,” he said. “I think that’s the bigger concern.”

Malveaux said he recommends companies stay attuned to OSHA recommendations to avoid worker complaints to the agency. What does not help is a lack of inter-agency cooperation in providing guidance to employers.

“This issue can also hinge on several protected categories like disabilities, and protected status and religion,” he said.

“There are also vaccinated people who still need to wear face masks or because they just choose to. There are unvaccinated people who don’t wear face coverings and that leads to a lot of anxiety, as well as some people, even if they’re unvaccinated, can’t wear a face covering because it presents a hazard, for instance people who need to read lips due to a hearing impairment,” Malveaux said. “There are landmines everywhere.”

To contact the reporter on this story: Fatima Hussein in Washington at fhussein@bloombergindustry.com

To contact the editors responsible for this story: Andrew Harris at aharris@bloomberglaw.com; Jay-Anne B. Casuga at jcasuga@bloomberglaw.com

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