To Mask-Up or Not to Mask-Up–Guidance for Ohio Employers

The decision to wear or not to wear face masks or face coverings continues to be a hotly debated and, in many ways, highly politicized topic throughout the country as COVID-19 shows no signs of vanishing any time soon.  While Governor DeWine did not, in his July 15 press conference, announce that masks would be mandatory throughout the State of Ohio, there are local, state, and federal laws, mandates, and recommendations regarding face coverings in the workplace.  All employers, in Ohio and elsewhere, need to be mindful of the laws and guidelines which govern and guide the decision to have employees wear face coverings or not wear face coverings in the workplace. 

At the local level, some local governments have issued requirements similar to the State of Ohio requiring face coverings.  Locally, Akron and Cleveland have implemented these laws which, if violated, can result in fines for individuals and higher fines for businesses. 

At the state level, the State of Ohio still mandates, in most situations, the wearing of face coverings in the workplace.  The State of Ohio guidance includes:

• The State of Ohio Department of Health Order, first issued in March and extended as recently as early July with the intention it remains in place until the State of Emergency order is lifted by the State in the future, requires all employees to wear face coverings.  There are exceptions to that general rule including:

1. 1. 1. Face coverings are prohibited by law or regulation.
      2. Face coverings are in violation of documented industry standards.
      3. Face coverings are not advisable for health reasons.
      4. Face coverings are in violation of documented safety policies.
      5. Dave coverings are not required when an employee works alone in an assigned work area.
      6. There is a functional or practical reason for an employee not to wear a face covering.

• All individuals, both inside and outside the workplace, are required to face coverings in any indoor location (not a residence) or an outdoor location where social distancing cannot be maintained in any County which is at a Level 3 or Level 4 on the State’s new Public Health Advisory System.  This presently includes Cuyahoga County as of the date of this Legal Alert.  
• Nearly all Responsible Restart Ohio guidance mandates the wearing of face coverings (with exceptions).

The federal government, neither through law nor guidance, has mandated the wearing of face coverings in the workplace.  However, the CDC recommends that all employees (and individuals outside of the workplace) wear a cloth face-covering in public settings where other social distancing measures are difficult to maintain. In addition, OSHA recommends allowing workers to wear face coverings over their noses and mouth to prevent them from spreading the virus.

Like so much of the guidance and mandates from the government related to COVID-19, it is strongly recommended that any time an organization makes a decision to deviate from a mandate or not follow a recommendation/best practice, the organization should document its process in reaching that decision and be able to justify its decision to not require a face-covering where a face covering is otherwise required or recommended.  Based on the current climate, face coverings are likely to remain popular as a preventative measure and it is unlikely that these mandates or recommendations will be lifted any time soon.

If you have any questions about this Legal Alert, your response to COVID-19, or any related matter, please contact Attorney Michael J. Bogdan (mbogdan@www.kwgd.com) or any member of the KWGD Labor and Employment Practice Group at 330-497-0700.

NOTE: This general summary of the law should not be used to solve individual problems since slight changes in the fact situation may require a material variance in the applicable legal advice.