On April 12, 2020, Governor Andrew Cuomo issued Executive Order 202.16, requiring employees of essential businesses who come into close contact with customers and/or the public to wear face coverings. New York joins a growing list of states and municipalities implementing such mitigation measures, including New Jersey and numerous counties in California. New York employers should be conscious of the following guidance when implementing this now-mandatory face covering policy:
- Employers are responsible for paying for and providing the face covering to employees. An employer may not, for example, deduct the cost of a face covering from an employee’s pay. However, employees may choose to use their own face coverings if it is, in fact, their decision to do so.
- A “face covering” does not have to be a surgical-grade mask. For guidance on what qualifies as a “face covering,” employers should follow CDC guidelines on the topic, which are located here.
- Employees are required to wear face coverings when in direct contact with customers or the public, except where doing so would inhibit or otherwise impair the employee’s health. In other words, if an employee refuses to wear a mask because a medical condition prevents the employee from doing so, the employer cannot force the employee to wear the mask. Moreover, New York State Department of Health guidance on the Executive Order states that an employer cannot ask an employee for medical documentation to verify such a medical condition.
Presently, the guidance is otherwise silent as to whether the employee should then be permitted to work without a mask. Accordingly, it may be appropriate for employers to engage in the “interactive process” with any such employee to determine whether there are reasonable accommodations that may enable the employee to continue working without putting others at risk. If an employee refuses to wear a mask for non-medical reasons, e.g., it is uncomfortable, employers may remove the employee from the premises. However, if an employee cites another, generally “protected” reason for refusing to wear a mask, e.g., religious reasons, the issue may require further analysis.
New York employers operating essential businesses should immediately modify their workplace policies to comply with the mandates of the Executive Order, and may face civil penalties or criminal liability in the event of non-compliance.
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