As employers begin to plan for reopening their businesses after government-imposed shutdown orders, or plan for the return of more workers to their essential businesses who previously had been working from home, they must also ensure that the workplace is safe and free from hazards that cause or are likely to cause death or serious harm. Many employers have implemented the voluntary use of face masks to slow the spread of droplets known to transmit the coronavirus, but at least seven US states require the wearing of face masks in various situations, such as while in public, riding public transportation, working or shopping at essential businesses, and going to worksites. Furthermore, the Food and Drug Administration (FDA) has issued guidance requiring the use of face coverings by employees in certain food production-related industries, such as workers at grocery stores, pharmacies, on farms, in food production, processing and retail settings. Employers in these states (New Jersey, Rhode Island, New York, Maryland, Hawaii, Connecticut, and Pennsylvania, as of the date of this blog post) and industries therefore have added responsibilities to ensure that employees have access to and use protective face coverings; understand what types of face coverings are permissible, particularly in food and health industries; and to take affirmative steps to require employees to comply with these state and federal requirements.
Our environmental, health, and safety law colleagues Nicole Bothwell, and Jennifer Tharp, recently published a comprehensive analysis of the face mask issue—including the risks in providing or failing to provide masks to workers, where to source them, what types provide the broadest protection, and the FDA’s recent Emergency Use Authorization guidance—here on our Triage Law Blog.