Masks in the Workplace - What Businesses Need to Know

March 30, 2021

Governor Asa Hutchinson announced today the statewide mask mandate will be lifted effective immediately. Our labor and employment attorneys have put together some much needed guidance in the form of frequently asked questions to help business owners understand how this affects their place of business and current requirements set for employees and customers. 

Q. As a business/employer, can I still require my employees and/or customers to wear a mask after the Governor drops the mask mandate?

A. Yes, and you likely should.  

  • The CDC has released guidelines for vaccinated individuals: https://www.cdc.gov/coronavirus/2019-ncov/vaccines/fully-vaccinated-guidance.html
  • These guidelines include continuing to wear masks in public spaces, including the workplace.  
  • The CDC guidance also says that employees should continue to follow the protocols of their individual employers.
  • Additionally, new OSHA workplace guidance provides many suggestions, mirroring the CDC’s guidance.  https://www.osha.gov/coronavirus/safework
  • The new OSHA guidance emphasizes the use of masks and recommends that employers provide all workers with face coverings. 
  • The OSHA guidance provides: “Workers who are vaccinated must continue to follow protective measures, such as wearing a face covering[.]”
  • The OSHA guidance is advisory in nature but comes with a warning that employers have a general duty to keep their workplace free from recognized harms that cause death or serious physical harm. The guidance aims to abate the risk of these harms.

Q. What if an employee refuses to wear a mask citing Constitutional grounds, no directive in place, disability, etc.?

A. Employers generally may require employees to wear masks while at the workplace even if there is no state mandate. If an employee claims a medical condition or disability, the employer should engage in the interactive process to determine if there is a reasonable accommodation under the ADA. The most common accommodations include working from home, moving the employee to a position or location where he/she does not interact with other individuals, or offering wearing a face shield.

Q. What are the legal ramifications of NOT requiring masks?

A. There are a few things you should be aware of in terms of legal ramifications and responsibility:

  • In order to receive immunity under the Governor’s AR Executive Order, an employer must follow CDC and OSHA guidelines.  Thus, not requiring masks may strip you of immunity. 
  • Not requiring masks may make you susceptible to an OSHA investigation.
    • The OSHA General Duty Clause requires employers to provide their workers with a workplace that is free from recognized hazards that are causing or likely to cause death or serious physical harm. COVID-19 and risk of exposure to COVID-19 are considered recognized hazards. An employer could be subject to an OSHA investigation if accused of violating this general duty.
  • Not requiring masks may make you liable for unemployment claims
    • The Arkansas Court of Appeals recently ruled that quitting a job where the employer failed to undertake COVID-related precautions was not considered unreasonable. Thus, employees may be entitled to unemployment benefits if they quit because of the risk of exposure to COVID-19 at the workplace. Keener v. Dir., Dep't of Workforce Servs., 2021 Ark. App. 88 (2021).
    • Additionally, on February 25, 2021, the U.S. Department of Labor released guidance that expands workers’ eligibility for federal unemployment insurance. This means that workers will be eligible for Pandemic Unemployment Assistance if their regular unemployment benefits were denied because the employee refused to work or accept an offer of work at a worksite because they were not in compliance with coronavirus health and safety standards. In some cases, workers may be retroactively paid from the beginning of the PUA program. 
  •  If employees are operating under a collective bargaining agreement, there may be a clause that could be triggered if the union believes they are working unsafely.

Q. If all employees have been vaccinated, do they have to wear a mask?

A. The current CDC guidance recommends vaccinated individuals wear masks in public places, including the workplace. This guidance may change, so stay tuned for more updates.

Q. If the statewide mask ordinance goes away, are local ordinances still in effect and have to be followed?

A. As announced at today’s press conference, cities and localities will be permitted to implement their own mask mandates.

  • Even if there is not local mandate in place, businesses may institute or maintain a mask requirement for employees and customers while on their property.  As discussed above, we encourage businesses to maintain a mask requirement consistent with current CDC and OSHA guidance to limit any potential liability.  
  • We expect more guidance from the State on the lifting of the mask mandate and will continue to provide updates.

Q. Any recommended signage for businesses that will still require masks?

A. Signage that communicates that masks are required for entry may help combat any claims of discrimination or arbitrary enforcement. Signage should be visible at each entrance, and ideally, readable from a distance of several feet to help prevent congregating at entrances.

Click here for printable versions of new signage produced by the Arkansas State Chamber of Commerce requiring that masks must still be be worn when entering a business. Click here for Spanish.

Disclaimer: The information included here is provided for general informational purposes only and should not be a substitute for legal advice nor is it intended to be a substitute for legal counsel. For more information or if you have further questions, please contact one of our Attorneys.