As we detailed last week, on April 12, New York Governor Andrew Cuomo issued an executive order requiring all essential businesses to provide their employees with “face coverings” to be worn when the employees are “in direct contact with customers or members of the public.”  The New York State Department of Health (DOH) has now issued guidance clarifying and providing parameters for essential businesses seeking to comply with this mandate.  We will summarize the material facets of that guidance below.

What constitutes “face coverings” and “direct contact”?

To start, the DOH’s guidance clarifies that face coverings include, but are not limited to, cloth-based coverings (e.g., homemade sewn, quick cut, or bandana), surgical masks, N-95 respirators, and face shields.  The guidance also refers employers to CDC materials concerning cloth face covers and other PPE, as well as instructions on use and cleaning.

In addition, the DOH’s guidance explains that individual employers may interpret the phrase “direct interaction with the public,” as used in Governor Cuomo’s executive order, as it relates to their specific workplaces.  Nevertheless, according to the DOH, such phrase, at a minimum, includes any employee who is routinely within close contact (i.e., six feet or less) with members of the public, including but not limited to customers or clients.

Are employees permitted to use their own face coverings?

Yes.  The guidance confirms that employees may use their own face coverings, but may not be required to do so by their employer.  Employees may wear more protective coverings (e.g., surgical masks, N-95 respirators, or face shields) if they are already in possession of such PPE, or if the employer otherwise requires employees to wear more protective PPE due to the nature of their work (e.g., health care industry workers).

Are there any exceptions to the face covering mandate?

 Yes.  Importantly, the DOH makes clear that employees are not required to wear face coverings if “doing so would inhibit or otherwise impair the employee’s health.”  The guidance cautions that employers are prohibited from requesting or requiring medical or other documentation from an employee who declines to wear a face covering due to a medical or other health condition that prevents such usage.  In a related vein, the guidance recommends that employers consider reasonable accommodations – including but not limited to different PPE, alternative work locations, or alternate work assignments – for employees who are unable to wear face coverings and are susceptible to COVID-19 based on the “Matilda’s Law” criteria (i.e., individuals who are 70 years of age or older, individuals with compromised immune systems, and individuals with underlying illnesses).

What if an employer cannot procure, fashion, or obtain face coverings?

 Employers should contact their local office of emergency management to see whether extra supplies exist and, if so, they may submit a request for face coverings.  The guidance cautions that quantities are extremely limited and are prioritized for health care workers and first responders.  Perhaps most importantly, the guidance underscores that an employer’s inability to source face coverings does not relieve it of its obligation to provide such face coverings to employees.

Reed Smith’s attorneys are monitoring New York’s actions in response to COVID-19 and their related impact on employers.  If you have any questions on how to ensure compliance with the state’s many new regulations, our team is available to assist.