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What Lifting the State Mask Mandate Means for Business Owners (Commentary)

4 min read

Editor’s Note: Gov. Asa Hutchinson on Tuesday lifted the state mask mandate in Arkansas, citing lower COVID-19 positivity rates and hospitalizations.

This week, the labor and employment attorneys at Friday Eldredge & Clark LLP of Little Rock collaborated on a document to answer some employers’ commonly asked questions about the lifting the mask mandate and what it means for them — including whether they can still require masks in their workplaces (they can).

The document, which the Arkansas State Chamber of Commerce has emailed to its members, is available below, with some minor editing. Arkansas Business has reprinted it with permission from the law firm.

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, as we’ll outline throughout this article.   

The U.S. Centers for Disease Control and Prevention has released guidance for vaccinated individuals.

These guidelines include:

  • Continuing to wear masks in public spaces, including the workplace. 
  • It also says employees should continue to follow the protocols of their individual employers.

Additionally, new Occupational Safety and Health Administration workplace guidance provides many suggestions, many of them mirroring the CDC guidance. You can read the OSHA guidance here.  

  • The new OSHA guidance emphasizes the use of masks and recommends that employers provide all workers with face coverings. 
  • The OSHA guidance also says, “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 reasons, saying there’s no state directive in place, or citing a disability?

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 Americans with Disabilities Act.
  • The most common accommodations include working from home, moving the employee to a position or location where he or she does not interact with others, or offering them a face shield.

Q: What are the legal ramifications of not requiring masks?

A: Importantly, in order to receive immunity under the governor’s executive order, an employer must follow CDC and OSHA guidelines. Not requiring masks may strip you of that immunity. 

Not requiring masks may also 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 Feb. 25, 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. The guidance may change so stay tuned for more updates.

Q: With the statewide mask ordinance gone, are local ordinances still in effect? Must they be followed?

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

But even if there is not a 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: Are there any recommended signs for businesses that 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.

The Arkansas State Chamber of Commerce has produced downloadable printable versions of new signage which state that masks must still be worn when entering a business. Signs in Spanish are also available.

Friday Eldredge & Clark LLP is a full-service law firm representing businesses, nonprofits, governmental and individual clients in Arkansas and across the United States. It has offices in Little Rock and Rogers and practices in more than 50 areas of the law including business and corporate law, litigation, labor and employment, employee benefits and more. For more information, visit fridayfirm.com.
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