News

Should You Relax Your Workplace Masking Policy?

Author: Date: 04/13/2021

Categories: Corporate and Business Law, Employment Law & Litigation

Man and a woman at an office working with masks on and social distancing. As the pandemic wears on and effective vaccines roll out to many adults, employers and employees are hoping to stop wearing masks in the workplace.  To reduce labor risks, we advise employers to keep a workplace mask policy in place, remind all employees that the policy remains in effect, and directly address employees who do not cooperate. 

As of this writing on April 12, 2021, statewide masking orders remain in effect for private businesses in Maryland, Virginia, and the District of Columbia.  In Maryland, masks are required at least “in all the public spaces of all public and private businesses.”

We know masks work

Masks are still the most effective means of stopping transmission of the virus, short of complete vaccination, which many hope will be possible within a few months. In the meantime, wishful thinking does not serve an employer well. 

Even though the CDC released guidance in March that those who are fully vaccinated can gather privately in small groups with other fully vaccinated people without wearing masks, the CDC is unequivocal that masks along with social distancing measures are still recommended in public and with unvaccinated people who:

  • are at increased risk for severe Covid-19 disease;
  • have an unvaccinated family member who is at increased risk for severe Covid-19 disease;
  • are from multiple households; or
  • are in medium to large gatherings.

And therein lies the rub – very few, if any, employers in our practice meet all of these criteria, especially as workplaces reopen not only to employees but to customers and clients. 

Further, the OSHA general duty clause requires all employers to provide a work environment free from recognized hazards that are causing or likely to cause death or serious physical harm. 

Consistent enforcement is key

It is important to consistently address every employee who is not wearing a mask directly.  Unless there is a bona fide medical reason to exempt the employee from the workplace mask policy, it is usually appropriate to take three steps: 

  1. Find out why the employee is not following the policy.
  2. Reinforce the employee’s understanding of the policy that masks are not optional.
  3. Emphasize that repeated non-compliance can and will result in discipline.

Repeat if the behavior continues – and increase the discipline up to and including termination. 

Natasha M. Nazareth helps businesses and schools with practical strategies for employment laws and risk management in the workplace. She can be reached at 240.778.2310 or nnazareth@mcmillanmetro.com.