In response to the COVID-19 pandemic, the Centers for Disease Control and Prevention (CDC) recommends the use of cloth face coverings in public settings, including in any situation where social distancing measures and other hygiene practices are difficult to maintain (e.g., grocery stores and pharmacies), and especially in areas of significant community-based transmission.
Between April 13 and April 22, 2020, leaders from the four largest Texas metropolitan areas – Dallas County, Harris County (Houston) and the cities of San Antonio and Austin – adopted mandatory face covering orders. The orders have direct implications not only on individual residents but also on businesses, particularly as employees gradually return to work in the coming weeks.
In addition, Texas Gov. Abbott issued new orders on April 27, 2020, that provide a phased approach to opening certain businesses in May and address safe ways to return employees to work and for customers to visit those business operations. His orders encourage the use of face coverings and while his orders do claim to supersede certain portions of the local orders discussed below, the portions of the below orders regarding face covering requirements appear to be enforceable save and except for those portions imposing a penalty for failure to wear a face covering. Gov. Abbott's April 27 order prohibits the imposition of a civil or criminal penalty for failure to wear a face covering and appears to supersede local orders imposing fines or penalties for violations.
Employers operating or considering opening in the counties and cities addressed in this Holland & Knight alert should consider working with their employment counsel to ensure that they understand and follow all applicable federal, state and local guidelines regarding face coverings.
Austin Mayor Steve Adler signed an initial Stay Home, Work Safe Order on March 13, 2020. On April 13, Adler extended the city's March 13 order via an Amended Order, which contained an additional requirement mandating that most residents of the city over age 10 wear face coverings in public spaces, with certain exceptions such as riding in a personal vehicle, when alone in a separate single space (indoors or outdoors), when in the presence only of members of one's household or residence, when consuming food or drink, or when doing so poses a greater mental or physical health, safety or security risk to those who are unable to remove the cover without assistance.
According to the order, enforcement is substantially reliant on self-regulation, although if there is not widespread compliance, city and county officials will increase enforcement efforts. The order provided that violation of the face mask mandate is a criminal offense, and is punishable by a fine not to exceed $1,000 and/or confinement in jail for a term not to exceed 180 days. However, this provision is likely superseded by Gov. Abbott's April 27 order prohibiting the imposition of civil or criminal penalties for failure to wear a face covering.
Dallas County Judge Clay Jenkins signed his initial Safer At Home Order on March 12, 2020. On April 16, Jenkins issued an Amended Order requiring face coverings to be worn by all residents age 2 and over who patronize an Essential Business or use public transportation. The requirements began at 11:59 p.m. on April 17. No end date is contained in this or any further Amended Order to date. The Amended Order requires, to the greatest extent possible, that all non-medical employees working at an Essential Business must wear a face covering or mask whenever in public or whenever performing job duties in the presence of others. Jenkins issued FAQs for the use of Cloth Face Coverings, and has since issued additional Amended Orders affecting the face covering order on April 17, April 18 and April 23, 2020. Notably, the April 23 Amended Order allows certain retail service businesses to reopen on a limited basis and requires employees of those employers to wear face coverings.
Jenkins made clear that the enforcement provisions of the Amended Orders are not applicable to face coverings. Therefore, no law enforcement officer shall stop, detain or arrest any person based on a violation of the face covering requirement. However, he authorized Essential Businesses to refuse admission or service to any individual who fails to wear a face covering, with certain exceptions such as riding in a personal vehicle, engaging in outdoor activities, eating, for children who cannot wear it safely or have breathing problems, or when doing so poses a greater mental or physical health, safety or security risk to those who are unable to remove the cover without assistance.
San Antonio Mayor Ron Nirenberg issued a Stay Home, Work Safe Order on March 23, 2020. On April 16, Nirenberg issued an Amended Order requiring all people 10 years or older to wear a cloth face covering over their nose and mouth when in a public space where it is difficult to keep 6 feet away from other people (such as grocery stores, pharmacies, or in areas that involve working in close proximity with other co-workers). Some exceptions include when exercising or engaging in physical activity outside, when driving alone or with passengers who are part of the same household, while in a building that requires security surveillance or screening (i.e., banks), while consuming food or drink, or when doing so poses a greater mental or physical health, safety or security risk.
San Antonio's Amended Order provides that violators of the face mask mandate could face up to a $1,000 fine or up to six months in jail, though city officials stated that the city will prioritize educating the public about the new public health safety measures and not writing citations. However, the provision regarding fines or jail time is likely superseded by Gov. Abbott's April 27 order prohibiting the imposition of civil or criminal penalties for failure to wear a face covering.
Harris County Judge Lina Hidalgo signed an order requiring the use of face coverings between 12:01 a.m. on April 27 until 11:59 p.m. on May 26, 2020. The order is applicable to anyone age 10 or older. Residents are not required to wear masks under certain circumstances, including while exercising outside or engaging in physical activity outside alone, when alone in a separate single space (indoors or outdoors), when in the presence only of members of one's residence, when eating or drinking, when experiencing a period of homelessness, or when doing so poses a greater mental or physical health, safety or security risk to those who are unable to remove the cover without assistance:
The order provides that an offense may be punishable by a fine not to exceed $1,000. However, the provision is likely superseded by Gov. Abbott's April 27 order prohibiting the imposition of civil or criminal penalties for failure to wear a face covering.
All major Texas counties' orders distinguish between masks and face coverings.
A "mask" is typically defined as 1) a filtering respirator (e.g., an N95 or K95 filtered mask), or 2) a specialized medical grade or surgical mask. Given reported and continued shortages and supply challenges related to both types of masks, the major Texas counties' orders all state that such masks should generally be reserved for healthcare providers, first responders and essential workers to support task-specific Occupational Safety and Health Administration (OSHA) and workplace safety requirements related to respiratory protection.
A "face covering" is a manufactured or homemade cloth mask or a mask made from cotton, pillow cases, bandanas, or similar materials that effectively covers an employee's mouth and nose. Importantly, the CDC lists five criteria for cloth face coverings to be effective. Other types of improvised coverings, such as a scarf or single cloth layer, do not meet the CDC's criteria and would not be adequate protection per the CDC despite some orders mandating face coverings allowing the use of such improvised coverings. Other types of specialty or industrial coverings (e.g., barrier full-face shields) should be reserved for their normal uses and employers are not expected to make these available to workers who would not regularly be using them.
In addition to the CDC's guidance, OSHA has provided a multi-page Guidance on Preparing Workplaces for COVID-19, which includes guidance on the use and provision of masks and face coverings but does not include mandates. The U.S. Equal Employment Opportunity Commission (EEOC) has guidelines for pandemic preparedness, in general, which touches on the use of face masks in light of the Americans with Disabilities Act (ADA).
As the CDC states, multiple-use face coverings should "be able to be laundered and machine dried without damage or change to shape," generally at least once a day (as the Dallas County order specifies) or more often if contamination occurs. Regardless of whether face coverings are governmentally mandated, required by employer policy or merely recommended, proper cleaning and maintenance are critical to ensure that employees do not reuse dirty or contaminated face coverings, which pose a hazard to other employees, visitors, customers and third parties.
If there are questions about whether employees will be able to manage regular maintenance, employers are advised to either provide employees with a cleaning subsidy or set up an in-house cleaning program at the employer's expense. In the latter case, employees should understand that they may not get their own face coverings back after cleaning, and may need to carry additional coverings with them to wear during their commute home. Whatever approach employers take, they must ensure that their program complies with all applicable wage and hour requirements.
Employers should be making and documenting good-faith efforts to secure face coverings as a required element of doing business. The CDC's website includes do-it-yourself (DIY) options for making one's own face covering using materials such as T-shirts, bandanas and hair ties, and numerous similar tutorials can be found online. Employers should consider providing employees with such instructions and materials (at the employer's expense) as an interim measure while they continue to source more standard face coverings. In such cases, the employer should determine with the help of counsel whether the employee's time spent making face coverings is compensable.
When the employer is having difficulty sourcing face coverings or employees prefer to use their own, employers must make sure that the employee-sourced face coverings meet the CDC's recommendations and that they are cleaned regularly and correctly. Given the proliferation of novelty masks and materials, employees should be cautioned that DIY face coverings must be workplace-appropriate and employers should issue guidelines on the material used and prohibit use of offensive images, messages or content.
Employers should provide employees with instructions and, if possible, training on how to wear, maintain, clean, store and remove their face coverings in accordance with federal, state and local laws. Employees must securely cover their noses and mouths, should not reverse their face covering, should not touch, move or remove their face coverings unnecessarily in the workplace, should not share their face coverings with others, and must keep them clean in the manner required by the orders at issue. Employees should be trained to avoid touching their eyes, nose and mouth when removing their face covering and to wash their hands thoroughly immediately after removing.
Employers that decide to provide employees with single-use face coverings must provide a sufficient supply to enable employees to replace them as needed, which may be more than once a day. Employers should also instruct and train employees to properly and safely discard single-use face coverings into trash receptacles after each use.
Face coverings are considered personal protective equipment (PPE). Therefore, an employee who fails to bring an approved face covering to work should not be permitted to work on-site until they are able to obtain an approved face covering.
The initial training process by the employer should include identification of any medical issues that could interfere with wearing face coverings. Medical issues that might be raised include claustrophobia, asthma, chronic obstructive pulmonary disease (COPD) and other conditions. Employers are advised to engage in the interactive process with employees who claim they cannot wear a mask for medical reasons as required by the ADA. An employee who cannot breathe through a face covering should not be required to wear one but may need to be temporarily removed from positions that require close interaction with other employees, customers or third parties. These employees may require leave or other accommodation.
The employer should analyze an employee's non-medical objections to wearing a face mask and engage in an interactive process under Title VII if the employee raises an objection that is or may be based on religious grounds. The employer will want to reevaluate preexisting grooming or dress requirements that conflict or interfere with prescribed face coverings.
There have been reports of certain employees raising bias concerns, such as where people of color wearing face coverings are wrongly suspected of criminal intent and activity. Employers should take steps to minimize this risk. Options include sourcing face coverings that clearly look like protective masks and posting notices to customers to make it clear that employees are required to wear face coverings.
Individuals who simply decline to wear face coverings but do not raise a medical or otherwise protected objection should not be permitted to work and may be disciplined for not following work requirements. This is an issue that should be addressed in new policies to be rolled out to employees as workplaces reopen and should be included in training.
Gov. Abbott's April 27 executive order states that individuals are encouraged to wear appropriate face coverings, but that "no jurisdiction can impose a civil or criminal penalty for failure to wear a face covering." As such, the governor's order appears to supersede the portion of any local order that imposes fines or penalties for people found violating the face mask mandate.
It should be noted that Texas businesses can require customers to wear face coverings on the business premises, and that customers who refuse to wear a face covering and refuse to leave the premises may be subject to a criminal trespass warning or arrest. Businesses who adopt this policy are encouraged to contact local law enforcement officials for assistance in enforcing the policy, if necessary.
Mask and face covering requirements are expected to remain in place for the next several months along with social distancing and other preventative measures. Expect Gov. Abbott and Texas cities and counties to amend and clarify orders as more information is learned and as the CDC and OSHA expand their own recommendations. The CDC has recommended face coverings as a protective measure for returning essential employees to work following COVID-19 exposure. As such, employers should make reasonable efforts to source face coverings for essential workers, particularly those who interface with customers and others, and consider what other safety measures may be needed as employees transition back to on-site work in greater numbers. Employment counsel can assist employers in evaluating and documenting appropriate return-to-work policies and procedures.
DISCLAIMER: Please note that the situation surrounding COVID-19 is evolving and that the subject matter discussed in these publications may change on a daily basis. Please contact your responsible Holland & Knight lawyer or the author of this alert for timely advice.
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