The states of Texas, Wyoming and Mississippi have chosen to discard their legal and regulatory restraints on businesses that were instituted to control the spread of COVID-19, but employers need to keep in mind that federal legal requirements remain in force and need to communicate this fact to their employees.
There is no better example of this than the mask mandates, which these states have on their books but which they have chosen to eliminate.
In Texas, Gov. Greg Abbott (R) issued an Executive Order on March 2 removing the state’s mask mandate and permitting all businesses to operate at 100% capacity as of March 10. In Mississippi, Gov. Tate Reeves (R) announced his state’s lifting of all state-imposed mask mandates and ended COVID-19 related restrictions on business operations.
On March 8, Wyoming Gov. Mark Gordon (R) announced that his state would lift its mask requirements along with other COVID-19 economic restrictions. In addition, South Carolina Gov. Henry McMaster (R) remarked on his state’s lack of a mask mandate throughout the COVID-19 pandemic, noting that his state couldn’t remove one because it “never had one in the first place.”
Attorneys Daniel R. Stern and Elizabeth Voss of the Dykema Gossett law firm say the Texas governor’s order may serve to encourage employees who were opposed to company safety protocols to resist them.
“As was the case before the executive order, and recognizing the possible need for religious or disability accommodation, employees who refuse to comply with any policy or requirement, including a requirement to wear a mask in common areas of the worksite, can be disciplined up to and including termination of employment,” they point out.
The order also does not require businesses to operate at 100% capacity, does not prohibit businesses from requiring or encouraging mask-wearing by employees and customers, and does not prohibit businesses from implementing additional safety protocols to reduce the risk of transmission of COVID-19.
When it comes to the Texas governor’s action, “nothing in this executive order precludes businesses or other establishments from requiring employees or customers to follow additional hygiene measures, including the wearing of a face covering,” Stern and Voss state.
Business Restrictions Remain
Brittany Barrientos and Molly Walsh, attorneys with the law firm of Stinson LLP, tell businesses they should not be too quick to change their workplace policies because the Occupational Safety and Health Administration (OSHA) still requires employers to provide a safe and healthful work environment.
Under a direct order signed by President Joe Biden on his first day in office, the federal agency has issued extensive new guidelines for employers who come under its jurisdiction. Employers should provide all workers with face coverings (that is, cloth face coverings or surgical masks), unless their work task requires a respirator.
In its guidance, OSHA says face coverings supplied by employers should have at least two layers and should not feature exhalation valves or vents. In operations where face coverings can become wet or soiled, employers should provide workers with replacements daily or more frequently.
The agency is expected to publish an Emergency Temporary Standard (ETS)—which also was ordered by the president and has been long sought by labor unions—no later than mid-March to protect workers from COVID-19. That ETS will have the force and effect of a federal regulation and is widely expected to include face covering requirements and other items included in the 6,000-word guidance that OSHA issued on Jan. 29.
Workplace guidances that have been issued by the Centers for Disease Control and Prevention (CDC) during the pandemic also told employers they should adopt masking requirements for their workers, and some employers’ failure to do so has led to lawsuits filed by employees who have contracted the disease.
Stern and Voss also note that the Texas governor’s order does not shield businesses from liability if employees or customers contract COVID-19 on site. In fact, it encourages individuals and businesses to continue to follow health recommendations from the Texas Department of State Health Services (DSHS) and to wear face coverings where social distancing is not feasible.
The executive order expressly states that “individuals are strongly encouraged to wear face coverings over the nose and mouth wherever it is not feasible to maintain six feet of social distancing from any other person not in the same household.”
Stern and Voss stress, “While these measures are encouraged and not required, the executive order cannot reasonably be read to justify the elimination of any and all precautions an employer might have taken as a result of the coronavirus pandemic.”
Barrientos and Walsh recommend, “To avoid potential liability under OSHA and to avoid the spread of COVID-19 in the workplace, face covering policies should remain in place regardless of employee vaccine status and regardless of the presence (or absence) of state/local orders requiring face coverings.” They add that where other state and local health agencies have similar recommendations or requirements, those also should be considered.