Practical Employer – Workforce

During yesterday evening’s statewide address, and amid dangerously rising COVID-19 infections and hospitalization, Governor Mike DeWine, announced the reissuing and restating of Ohio’s mask mandate. The order now contains four specific rules for businesses to follow regarding mandatory masking.

Each business will be required to post a Face Covering Requirement sign (version 1 / version 2) at all public entrances of the store.
Each business will be responsible for ensuring that customers and employees are wearing masks.
A new Retail Compliance Unit, comprised of agents led by the Bureau of Workers’ compensation, will inspect to ensure compliance.
First violations will receive a written warning, and a second will result in a 24-hour closure of the business.

construction, mask, mobile technology, COVID-19

First and foremost, before the disabled and their advocates start screaming that this order violates the ADA, it doesn’t. Yes, Title III of the ADA requires that businesses that are open to the public make exceptions to mask rules for those with disabilities that prevent them from wearing a mask. That accommodation, however, need not be letting them inside the business unmasked. You can offer online ordering and curbside pickup. You can have shoppers at the ready to make purchases on-call and bring them outside to the customers, or otherwise meet the customer outside to transact business. As long as your service is made “readily accessible” for someone with a disability, you’ve met your obligation under the ADA, and there are many ways to accomplish this without letting someone inside maskless.

The same applies to employees. Title I of the ADA allows employers to modify work rules as a reasonable accommodation for an employee’s disability. If a mask causes an issue for someone with a disability, the solution is to offer that individual an accommodation. Maybe you segregate the employee so that he or she does not come into contact with anyone else. Maybe you permit that employee to work from home. Maybe you grant a leave of absence until the risk abates. The point is that the employer and the employee have options other than allowing them to work freely without a mask.

Secondly, the combination of numbers two, three, and four have me concerned if an employer is going to place compliance and enforcement responsibility on its employees.

For reasons that still befuddle and escape me, some people become hostile when told to wear a mask. Yet, your employees are not professionally trained in diffusing hostile situations. Don’t leave it up to your untrained employees to try to enforce these rules and potentially deal with escalating hostilities and violence. You wouldn’t send an amateur to defuse a bomb, lest you risk an explosion. This situation is no different. (It also might violate OSHA’s General Duty Clause.) Instead:

Deploy trained personnel (ideally security, but at least someone at a management level) to enforce this mandatory mask rule and ensure 100 percent compliance within your business; and
Train all other employees not to engage and instead to summon a designated responder.

This rule is long overdue. We all agree that masks are the number one thing we must do to slow the spread of COVID-19. Let’s mask up and all do our part.

A recent survey conducted by the Pew Research Center confirmed what I have long thought. Your employees are using social media at work — 77 percent of them. And I believe even that number is low.

Meanwhile, another recent survey, this one by CareerBuilder (h/t Ragan.com) attributes smartphones to the fact that 20 percent of full-time workers say they work less than five hours per day.

It’s not all bad news for employers. The same study found that evidence that workplace social media policies concerning impact on-the-job use. Workers whose companies have policies regulating social media use at work are less likely to use social media in certain ways:

30 percent of workers whose companies have an at-work social media policy say they use social media while on the job to take a break from work, compared with 40 percent of workers whose employers do not have such policies.
20 percent of workers whose employers have at-work social media policies say they use social media to stay connected to family and friends while on the job, compared with 35 percent of workers whose social media use is not regulated at work.
Only 16 percent of workers whose companies regulate social media at work say they use social media while working to get information that’s helpful to their job, compared with 25 percent of those whose workplaces have no such regulations.

What does all this mean? Despite the help that social media policies provide, employers that try regulate personal social media use out of the workplace are fighting a losing battle. I call it the iPhone-ification of the American workforce. No matter your policy, if your employees can take their smartphones out of their pockets to circumvent the policy, how can you possibly police workplace social media access? Why have a policy you cannot police and enforce? And, don’t forget, the NLRB is watching, too.

Instead of regulating an issue you cannot hope to control, treat employees’ use of social media for what it is — a performance issue. If an employee is not performing up to standards because he or she is spending too much time on the internet, then address the performance problem. A slacking employee will not become a star performer just because you limit his or her social media access; he or she will just find another way to slack off.

Jon Hyman is a partner at Meyers, Roman, Friedberg & Lewis in Cleveland. Comment below or email editors@workforce.com.

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