NOTE: Because the COVID-19 situation is dynamic, with new governmental measures each day, employers should consult with counsel for the latest developments and updated guidance on this topic.

As the COVID-19 crisis continues, and in light of changing guidance from the U.S. Centers for Disease Control and Prevention (CDC), numerous jurisdictions across the country have issued new guidelines for employers and the general public concerning the use of face masks or other face coverings while outside the home.

On April 3, 2020, the CDC recommended that individuals should wear cloth face coverings in public settings where social distancing measures are difficult to maintain.  The CDC has advised that using simple cloth face coverings may slow the spread of COVID-19 by helping prevent asymptomatic people from unknowingly transmitting the virus.  As the CDC has cautioned, face coverings are not a substitute for social distancing, personal hygiene, and additional cleaning protocols. 

Several states and counties have issued face covering requirements, at least for certain types of employers, including New Jersey, several counties in Oklahoma and Texas, and both Miami and Miami Beach, Florida. Some of these other locales have also included mandatory cleaning and disinfecting protocols.

As briefly discussed below, the City of Los Angeles recently joined this developing trend. We’ll review some of these new directives and provide some general tips for employers.

Los Angeles

Earlier this month, Los Angeles County issued guidance, recommending the public wear cloth face coverings in public settings where social distancing measures are hard to maintain.  Several other counties in California—including Riverside, San Bernardino, San Diego, and Lancaster County—have issued similar orders for essential workers requiring face coverings.  Now the City of Los Angeles has issued a worker protection order to address face coverings in the workplace.   

On April 7, 2020, Mayor Eric Garcetti issued a Worker Protection Order (Order) covering the City of Los Angeles, to take effect at 12:01 a.m. on Friday, April 10, 2020.  The Order applies to non-medical essential workers, as well as to customers and visitors of businesses and organizations exempt under the City of Los Angeles Safer at Home emergency order.  Non-medical essential workers must wear face coverings over their noses and mouths while performing work and must, at least once a day, wash any reusable face coverings. Single-use face coverings must be properly discarded into trash receptacles. The Order also provides that employees must be permitted to wash their hands at least once every 30 minutes.  Although the mayor and other agencies have not provided guidance as to who must provide and pay for the face coverings, the face coverings would likely be considered as personal protective equipment for the workplace. Typically, employers are obligated to pay for personal protective equipment that is necessary to protect the safety of employees.

In addition to employees, customers and visitors of exempt businesses and organizations must wear face coverings over their noses and mouths.  Owners of businesses may exclude individuals who refuse to wear a mask.  The Order states that failure to comply with the Order shall constitute a misdemeanor subject to fines and/or imprisonment, and it requests the Los Angeles Police Department and City Attorney to enforce the provisions. The order is in effect until the end of the local emergency period, and may be extended before May 1, 2020.

What is a Face Covering?

A face covering is a cloth, bandana, or other type of material (other than a surgical mask or a filtering respirator such as an N95) that covers an employee’s face and nose. In the Order, Mayor Garcetti specifically stated that face coverings are not N95 filtering face masks or surgical masks. 

Next Steps for Employers

Employers should review guidance from any county and city where they maintain operations and contact their counsel with any particular questions.  Employers in counties that require face coverings should immediately acquire and prepare to distribute these face coverings to employees. 

Employer should consider creating a policy or protocol to address:

• Whether the face coverings are safe for multiple use or single use only; 
• Where employees must deposit used/soiled face coverings in identified receptacles;
• How to manage employees that cannot wear face coverings because doing so will adversely affect their health; 
• Determining hazard assessments regarding whether face coverings will interfere with or inhibit job functions;  
• Training on how to use, safely don and doff, and clean reusable face coverings; and
• Any applicable wage and hour issues that should be considered, including, as may be required by law, ensuring tasks are performed on the clock and personal protective equipment is expensed.

Employers may need to engage with employees if they determine certain employees cannot use these face coverings, including providing employees with leave as an option, if other face covering options are not available.