Governor Cuomo issued Executive Order 202.16, which requires essential businesses, state and local governments and public authorities to provide face coverings to employees who directly interact with the public during the course of their work at no cost to the employees. Covered employers are also required to provide face coverings to contractors (including independent contractors) at no cost to the contractors. Employers must comply with this requirement beginning at 8:00 p.m. on April 15, 2020.
Guidance issued by the New York State Department of Health (DOH) states that whether an employee “directly interacts” with the public must be determined by an employer, but at least includes any employee who is routinely within close contact with the public (e.g., six feet or less), including but not limited to customers or clients.
The DOH guidance also explains that “face coverings” include but are not limited to cloth masks (e.g., homemade masks), surgical masks, N-95 respirators and face shields. Employees may be permitted to use their own face coverings, but employers may not require employees to use their own face coverings.
Employees must wear face coverings when in direct contact with members of the public, unless doing so would impair an employee’s health. The DOH guidance states that if an employee says wearing a face covering would impair his or her health, an employer is prohibited from requesting or requiring medical documentation from the employee. However, if an employee declines to wear a face covering due to a medical or health condition, employers are strongly encouraged to document the employee’s refusal and any reasons provided by the employee for his or her decision to decline to wear a face covering.
Employers with employees who cannot wear a face covering but have a higher risk of contracting COVID-19 (e.g., individuals over 70 years old or individuals with compromised immune systems or underlying health conditions) are advised to explore possible reasonable accommodations with the employees. The guidance issued by the DOH explains that reasonable accommodations could include providing a different face covering or changing an employee’s work location or work assignment so the employee interacts less with the public.
The DOH guidance encourages employers that cannot obtain face coverings for employees to consult with their local office of emergency management. While the guidance acknowledges that supplies are limited and health care workers and first responders will receive priority in receiving face coverings, the DOH states that an employer’s difficulty and/or inability to obtain face coverings does not relieve its obligation to do so. The requirement to provide face coverings to employees who directly interact with the public may be enforced by law enforcement or local governments.
As employers navigate these issues, our Firm’s labor and employment attorneys are standing by to provide legal advice.