Tag: masks

Posted on

OSHA sends employers a strong signal that it intends to follow the CDC on masks

VF Corp., COVID-19, mask, education

One open issue stemming from the CDC’s about-face on masking for the fully vaccinated is how OSHA would address these new guidelines. When OSHA published its Guidance on Mitigating and Preventing the Spread of COVID-19 in the Workplace in late January, it made it clear that one’s vaccination status had zero impact on an employer’s obligation to require masks in all cases.

Workers who are vaccinated must continue to follow protective measures, such as wearing a face covering and remaining physically distant, because at this time, there is not evidence that COVID-19 vaccines prevent transmission of the virus from person-to-person.

In the world of COVID-19, 3 ½ months is an eternity, so here we are just 3 ½ months later living in a country without facial coverings for the fully vaccinated. So what says OSHA?

The Centers for Disease Control and Prevention (CDC) has issued new guidance relating to recommended precautions for people who are fully vaccinated, which is applicable to activities outside of healthcare and a few other environments. OSHA is reviewing the recent CDC guidance and will update our materials on this website accordingly. Until those updates are complete, please refer to the CDC guidance for information on measures appropriate to protect fully vaccinated workers.

Until further notice, the story on masks at work remains as follows:

  • Fully vaccinated employees = maskless, if they choose.
  • Unvaccinated employees = masks.
As for me, I’ll be OK going maskless in places in which I know everyone else maskless is also fully vaccinated. Otherwise (hello Costco, and any other store that is putting people on the honor system) I’ll be keeping my mask on until further notice.
If the last year has taught me anything it’s that if left to their own devices too many people will fail to do the right thing. I just don’t trust that everyone maskless will be fully vaccinated. There just seems to be too high of a correlation between those who are anti-vax, anti-mask, and pro “liberty.” So thank you, maskless and unvaccinated. Your selfishness will require me to keep wearing a mask in many public places.
Posted on

‘Maskual harassment,’ Part 2

workforce management 2020, mask, COVID-19

“I wish I could see your pretty lips if they match ur eyes.”

“Come on, sweetie. Lemme see that pretty face under there. Take it off for me, will you? Just a quick flash.”

“I can be covid and make you short of breath.”

“I don’t wear a condom; I sure as hell aren’t going to wear a mask!”

“Social distancing? My pocket rocket can still reach you.”

“I’ll take your mask off and stick my tongue down your throat.”

These are just a few of the hundreds of awful and offensive comments to which service industry workers reported being subjected while working during COVID (report here).

As I recently pointed out, unlawful harassment is unlawful harassment, regardless of the alleged perpetrator. An employer cannot treat sexual (or other illegal) harassment of an employee by a non-employee any differently than harassment between employees. Indeed, in the words of the Ohio Administrative Code:

An employer may also be responsible for the acts of nonemployees (e.g., customers) with respect to sexual harassment of employees in the work place, where the employer (or its agents or supervisory employees) knows or should have known of the conduct and fails to take immediate and appropriate corrective action. In reviewing these cases the commission will consider the extent of the employer’s control and any other legal responsibility which the employer may have with respect to the conduct of such nonemployees.

What should an employer do when a customer is harassing an employee? Take the same five steps it takes when an employee is harassing another employee:

  1. Separate the victim from the alleged harasser.
  2. Promptly and fully investigate the allegations.
  3. Evaluate the evidence and make a reasoned conclusion as to what happened.
  4. Take prompt and effective remedial steps, if necessary.
  5. Use the complaint as an opportunity to retrain employees about your anti-harassment policy.
“The customer is always right” still holds true for most things, but not if the customer is unlawfully harassing your employee.
Posted on

Tipped restaurant and other service workers at high risk for ‘maskual harassment’

construction, mask, mobile technology, COVID-19
Everyone has been hit hard during the COVID-19 pandemic. Service industry employees, however, have been hit particularly hard. Many are out of work. And those who are able to work are working fewer hours and earning less in wages and tips.
Moreover, according to this survey (h/t: NPR), a majority of service industry workers are being forced to choose between earning valuable tips and staying safe by wearing a mask.

Consider these statistics regarding tipped employees:

  • 78 percent report experiencing or witnessing hostile behavior from customers in response to staff enforcing COVID-19 safety protocols.
  • 83 percent report that their tips have declined during COVID-19, with two-thirds reporting a decline of more than half.
  • 58 percent report feeling reluctant to enforce COVID-19 protocols out of concern that customers would tip them less.
  • 67 percent report actually having received a lesser than usual tip after enforcing COVID-19 protocols.
  • 84 percent report being within six feet of at least one person who is not wearing a mask in every shift, and one-third report being within six feet of 30 or more maskless individuals on every shift.

The kicker: 37 percent of tipped workers reported that their employer had not conducted mandatory training on COVID safety protocols and 69 percent reported that their employer is not consistently following all COVID safety protocols.

This is unacceptable. Restaurant workers are on the front lines of this virus working inside one of this pandemic’s most dangerous spreading environments.

They shouldn’t have to be de facto safety sheriffs, enforcing mask mandates and other health rules. Yet, that is the position in which many of their employers have put them, which, according to the above survey, is often without training or the enforcement of COVID safety rules.

Employees should not be placed in the position of enforcing COVID safety rules with a customer, especially when they risk the loss of tips and revenue as a result. Employers, do your part. Train your workers and set up a system of enforcement that takes your front-line workers out of the enforcement equation.

Posted on

States should follow Illinois’ lead in making it a felony to assault an employee over a mask rule

essential workers; workers' compensation, mask

Elmo, Big Bird, Cookie Monster … and assault?

Sesame Place is the latest employer to have an employee assaulted for trying to enforce a mask rule. It joins more likely suspects such as Target, WalMart (which has said that for the protection of its employees it will not require them to enforce mask rules), and McDonald’s (of which 44% of its employees report being physically of verbally assaulted by a non-mask-wearing customer).

Illinois is now the first state to enact a law targeted at this abhorrent behavior.

The law amends the definition of “aggravated battery” to specifically include an offense targeted at an employee who is “performing his or her duties, including, but not limited to, relaying directions for healthcare or safety from his or her supervisor or employer or relaying health or safety guidelines, recommendations, regulations, or rules from a federal, State, or local public health agency.” In layman’s terms, a customer who attacks an employee because that employee is trying to enforce a COVID-19 mask or other safety rule faces two to five years in prison.

According to a statement put out by the office of Illinois Governor J.B. Pritzker, “This provision sends the message that it’s vitally important for workers to be both respected and protected while serving on the front lines.”

Other states should follow Illinois’ lead and enact similar legislation. Employees need protection from these dangerous reactions to basic health and safety rules. I don’t believe your employees should be your front-line enforcers or mask and other safety rules. As I wrote three months ago, employers shouldn’t “leave it up to untrained employees to try to enforce these rules and potentially deal with escalating hostilities and violence.” Instead, employers should “deploy trained personnel (ideally security, but at least someone at management level) to enforce a mandatory mask rule in your business, and also train all other employees not to engage and instead to summon a designated responder.”

Still, even in the best of circumstances an employee may be put in harm’s way by an irrationally dangerous customer. No employee should face the risk of bodily injury just for telling someone to wear a mask. Laws like that enacted by Illinois send the message that this special brand of misbehavior should not and will not be tolerated.