Arizona does not currently have an Executive Order or law requiring individuals to wear face masks in public; however, the governor’s Stay Healthy, Return Smarter, Return Stronger Executive Order (2020-36), effective May 16, 2020, requires businesses that are reopening to take specific precautions including: “providing necessary protective equipment.”
Additionally, Arizona’s Department of Health Services recommends that “individuals engaging in essential activities who can safely manage their own cloth face coverings should consider wearing a non-medical cloth face in public settings where other physical distancing measures are difficult to maintain.”
The Center for Disease Control also recommends “wearing cloth face coverings in public settings where other social distancing measures are difficult to maintain (e.g., grocery stores and pharmacies).”
Whether an employer should require its employees to wear masks will depend on the particular business, the associated occupational risks, and whether the job requires close or frequent contact with customers or other employees.
For example, barbers, cosmetologists, and workers serving food or providing healthcare services will likely be required to wear personal protective equipment to comply with applicable state and federal guidance.
Employers should consult OSHA’s provisions concerning personal protective equipment and respiratory protection as well as the Department of Labor and OSHA’s Guidance for Preparing Workplaces for COVID-19 to determine where their businesses fall within the Occupational Risk Pyramid (e.g. very high, high, medium, and lower risk) and to establish the proper precautions for their employees.
Businesses who determine that their employees should wear masks when returning to work should also consider several related issues.
They will need written policies governing the use of masks to ensure that all similarly situated employees are treated the same.
They will need to provide adequate training to managers and supervisors to ensure that all policies are implemented as written and enforced in accordance with applicable state and federal equal employment opportunity and wage and hour laws.
Employers should specify that any designs or messages must comply with the company’s anti-harassment policies, be mindful of first amendment issues, and recognize that if they require employees to purchase their own masks, they will have less control over these issues. Employers should also provide instructions for the proper laundering or disposal of the masks as required by ADHS.
Employers should expect requests from employees for exemptions from any mask policy pursuant to the Americans with Disabilities Act and potentially for religious reasons.
Employers that receive requests for reasonable accommodations under the ADA must engage in an “interactive process” and make reasonable accommodations, provided that such accommodations are not an undue hardship.
Employers may consult the Equal Employment Opportunity Commission’s Pandemic Preparedness in the Workplace and the ADA (updated March 21, 2020) publication for additional guidance on this issue.
Juliet S. Burgess, Esq. is the founder and principal attorney at Burgess Employment Law.