What Does Our Business Need to Know About the New Masking Order?
Earlier this week, we touched on the new statewide masking order that went into effect on November 18, 2020. The Order was one of four new mitigation efforts announced by the Secretary of Health in response to the rising number of COVID-19 cases throughout the Commonwealth. Although the newly-issued travel order, which goes into effect on November 20, 2020, has received more attention due to the upcoming Thanksgiving holiday, we wanted to provide a “deep dive” on what the masking order means for employers.
When Are Face Coverings Required Under the Order?
Subject to certain exceptions, every individual, age two or older, must wear a “face covering” — defined as a “covering of the nose and mouth with material that is secured to the head with ties, straps, or loops over the ears, or is wrapped around the lower face” —when:
Indoors or in an enclosed space, where another person or persons who are not members of the individual’s household are present in the same space, irrespective of physical distance (i.e., whether or not the individuals are more than six feet apart).
Outdoors with others who are not members of the individual’s household and unable to maintain sustained physical distance of six feet or more.
Participating in indoor physical activity in a gym, fitness center, or group fitness class, where another person or persons who are not members of the individual’s household are present in the same space, irrespective of physical distance.
Waiting in a public area for, riding on, driving or operating public transportation or paratransit or while in a taxi, private car service, or ride-sharing vehicle, irrespective of physical distance.
Obtaining services for themselves or another person or a pet from the health care sector in settings including, but not limited to, a hospital, pharmacy, medical clinic, laboratory, physician’s office, dental office, veterinary clinic, or blood bank.
When working in any space where food is prepared, packaged for sale, or prepared for distribution by others.
What Are the Exceptions?
The Order also lists several exceptions to the covering requirements:
If wearing a face covering while working would create an unsafe condition in which to operate equipment or execute a task as determined by local, state, or federal regulators or workplace safety guidelines.
If wearing a face covering would either cause a medical condition, or exacerbate an existing one, including respiratory issues that impede breathing, a mental health condition, or a disability.
When necessary to confirm the individual’s identity.
When obtaining a service that requires the temporary removal of the face covering (e.g., dental services).
When “working alone” — defined as “when a person is isolated from interaction with other people with little or no expectation of in-person interaction.” Examples include: (1) a person by themselves inside an office with four walls and a door; (2) a lone worker inside a cubicle with three walls and a door or entryway, with walls high enough to block the breathing zone of all people walking by, and the worker’s activity will not require anyone to come inside of the worker’s workspace; or (3) an employee who is alone in an open area with no anticipated contact with others.
If an individual is communicating or seeking to communicate with someone who is hearing-impaired or has another disability, where the ability to see the mouth is essential for communication.
Despite listing these exceptions, the Order notes that “[a]ll alternatives to wearing a face covering, including the use of a face shield, should be exhausted” before excepting an individual from the Order.
What Special Obligations Are There for Businesses and Schools?
In addition to the covering requirements and exceptions, the Order sets forth specific obligations for businesses and schools. In particular, a business or school entity must:
Require that all people, including employees, customers, teachers, students, and visitors, wear a face covering and take reasonable steps to enforce the requirement.
Mitigate or eliminate the exposure of employees, customers, teachers, students, and visitors to individuals who cannot wear or refuse to wear a face covering.
Post prominent signs that are visible to all people stating that face coverings are required by the Order of the Secretary of Health.
Provide reasonable accommodations to people — including employees, customers, teachers, students, and visitors — who state that they have a medical condition, mental health condition, or disability that makes it unreasonable for them to maintain a face covering. Accommodations could include an alternative to a face covering — such as use of a face shield — or providing service options that do not require a customer to enter the business (e.g., offering curbside pickup, delivery, or “other innovative solutions).
Furthermore, a business or school entity should not:
Enforce face covering requirements when it is unsafe to do so.
Restrain, assault, use force against, or physically remove employees, customers, teachers, students, or other individuals who refuse to comply with the Order when it would not otherwise be legal to do so.
Violate other laws, including federal and state anti-discrimination laws (e.g., the Americans with Disabilities Act or the Pennsylvania Human Relations Act).
The Order, at a minimum, serves to remind employers of their obligations in providing a safe workplace for employees, customers, and visitors, while also exploring potential accommodations for employees, customers, and visitors with disabilities. For questions about this or any other labor and employment law topic, please do not hesitate to contact the attorneys at Hoffman & Hlavac. To stay updated on the key labor and employment law developments that affect your workplace, be sure to subscribe to our blog and follow us on social media.