The recent decline in COVID-19 infections has led numerous states to begin contemplating a roll‑back of mask mandates and related COVID-19 restrictions. Most recently, on Tuesday, March 2, 2021, Governor Greg Abbott and Governor Tate Reeves announced the imminent elimination of mask mandates in Texas and Mississippi, respectively. Both Governors also removed all capacity limits for the businesses within their states. However, these changes pose a serious challenge to employers. On the one hand, they shift employee and customer expectations about the types of restrictions that are appropriate. On the other hand, they do nothing to reduce employer risks associated with potential outbreaks in the workplace. As a result, employers will now need to engage in a careful campaign to maintain workplace safety in the face of increased employee and customer resistance to masking and other similar precautions.
Despite states lifting their restrictions, employers should continue to take the necessary precautions to keep employees and customers safe. The Centers for Disease Control and Prevention (CDC) continues to encourage compliance with its workplace safety measures to combat COVID-19. As a result, what is considered reasonable behavior with respect to employers’ COVID-19 precautions may continue to be assessed against CDC guidelines. To mitigate potential liability, employers should continue to look to the CDC and the Occupational Safety and Health Administration (OSHA) when determining what safety measures and restrictions to implement for their employees and customers.
Employers must also be prepared for increased resistance from employees to comply with mask mandates. Employers should consider renewed internal messaging campaigns to reiterate the importance of COVID-19 precautions and the scientific bases for those precautions. Further, employers should consider reminding employees—and responsible supervisors—that compliance is mandatory and violations will lead to discipline.
Similarly, employers will face increased resistance from customers who may contend that the roll‑back in government regulation means that they do not need to continue following safety guidelines and wearing masks. However, Employers, as private property owners, largely retain the right to continue enforcing the COVID-19 precautions they have put in place. Employers should prepare to stand firm on their right to implement necessary restrictions in response to the continuing COVID-19 pandemic. Failure to do so may lead employers to face claims from both employees and other customers.
To ensure successful maintenance of existing safety rules in customer-facing environments, Employers should make public efforts to inform employees and customers that though restrictions are no longer legally mandated, they have a continuing responsibility to implement reasonable safety measures in order to keep them safe. Employers should also underscore that they are relying on the CDC or other public health authorities—not government mandates—to inform these decisions. Relatedly, employers should provide instruction to employees on how to handle customers and co-workers who are non-compliant, and employers should work with their management teams to develop appropriate response mechanisms to customer or employee conflicts that may arise.
At the same time, in states that no longer mandate mask wearing, employers should exercise caution when handling employee and customer statements that they are unable wear masks due to disability or due to religious objections. Employers will need to determine whether they must accommodate employees or customers under the “direct threat” analysis mandated by the Americans with Disabilities Act (ADA) as well as under analogous religious accommodation requirements under applicable state and federal law.
Employers should also be mindful that these changes may make mandating COVID-19 precautions more difficult in unionized environments. While certain states may no longer require mask wearing, Equal Employment Opportunity Commission (EEOC), CDC, and OSHA guidance likely provide sufficient support for employers’ mask policies and related rules, subject to certain accommodation requirements. The changes to the state mandates, therefore, should not shift traditional labor requirements, but unions may push back harder in light of these recent changes.
Ultimately, the regulatory shifts in Texas and Mississippi do not provide any basis for employers to retrench the various safety protocols that have kept workers and customers safe over the last year. Texas and Mississippi’s repeal of mandated COVID-19 safety measures merely brings them into alignment with Alaska, Georgia, Idaho, Iowa, Missouri, Montana, Nebraska, North Dakota, Oklahoma, South Dakota, and Tennessee. These states all had lesser—or no—regulation on the behaviors previously regulated in Texas and Mississippi. Just as in those states, the lack of government mandates will not serve as a defense should lax protections lead to employee or customer injury.
Employers who have questions or who are considering reviewing their current COVID-19 policies should contact Reed Smith’s Labor & Employment Group for assistance.