What's Next for Employers in the Era of COVID-19? Face Coverings, Accommodations, and More

Jun 25, 2020

By Aviva Kamm and Krista Nelson Slosburg | Related Practice: Employment

As the COVID-19 pandemic continues to evolve and King County adjusts to Phase Two reopening, employers are faced with the difficult task of navigating a series of overlapping orders and workplace guidance. Here, we break down the most important things for employers to keep in mind to comply with state and federal laws and keep their employees safe.

Face masks

Do employees need to wear masks?

As we learn more about the transmission of COVID-19, it’s becoming increasingly apparent that facial coverings are one of the best ways to reduce spread of the virus. Yet a series of guidelines and orders have left many employers confused about what is actually required. Here’s what you need to know:

  • While federal guidelines encourage mask use, they do not require it.
  • In contrast, as of June 8, 2020, Washington employees are required to wear facial coverings unless they are working alone in an office, vehicle, or at a jobsite or one of the other limited exceptions discussed below applies.

  • Starting Friday, June 26, the requirement to wear masks in public will encompass all of Washington under a new Public Health Order on facial coverings, which requires that every person over age 5 wear a facial covering when in a public space if they cannot maintain 6 feet away from others. This order effectively replaces more localized mask requirements that have already been in place in some jurisdictions. For example, in King County, masks are required to be worn in indoor public settings or outdoor public locations when adequate distancing of approximately 6 feet from individuals who do not share a household cannot be maintained. In Yakima County, all individuals at indoor or confined public settings must wear face coverings if they are likely to be in contact with another individual who does not share their household and distancing of approximately 6 feet is not able to be maintained.

  • Washington employers must provide face coverings to employees, or appropriate PPE if the job in question dictates a higher level of protection (such as a respirator, face shield, or surgical mask). The Department of Labor and Industries has issued guidance for determining what type of face covering or mask is appropriate for different work settings.

  • What does it mean to work alone? Washington’s Department of Labor and Industries recently issued guidance on this question. Working alone includes a person working inside a private office or working by themselves in an agricultural field. However, a lone worker working inside a cubicle is only working alone if the walls are “high enough to block the breathing zone of anyone walking by and whose work activity will not require anyone to come inside of the cubicle.” For many workplaces, that means employees working in cubicles will be required to wear masks, unless the employer installs plastic extensions to raise the height of cubicle walls.

What if an employee says they cannot wear a mask or requests a different accommodation?

There are limited exceptions for employees who do not need to wear a mask. These include:

  • If the employee is deaf or hard of hearing;
  • If the employee is communicating with someone who relies on language cues such as facial markers and expression and mouth movements as part of communication; or
  • If the individual has a medical condition or disability that makes wearing a facial covering inappropriate.

If an employee notifies you that they are unable to wear a mask, treat the request as you would any other request for a reasonable accommodation.

Keep in mind that in recent COVID-19 Guidance, the EEOC clarified that the circumstances of the pandemic may be relevant to whether a requested accommodation poses an undue hardship. For example, an accommodation that would not have posed an undue hardship prior to the pandemic may pose one now. An employer may consider whether current circumstances create “significant difficulty” in acquiring or providing certain accommodations, considering the facts of the particular job and workplace.

Is social distancing still required?

Yes, social distancing is still required in all phases of the Governor’s Safe Start Plan. Face coverings and other protective measures are no substitute for maintaining adequate social distance. Employers should consider what they can do to make their offices more conducive to social distancing, such as removing chairs from conference rooms and implementing one-way walkways.

What about teleworking?

For counties in Phase 1, where only essential businesses are able to maintain physical operations, telework is required. For counties in Phase 2, telework remains strongly encouraged, though employers may resume physical operations subject to industry-specific guidance.

Employers should remain flexible in responding to employees’ requests to work from home, being careful to consider the employee’s unique circumstances. For example, an employer might be required to allow an employee with a serious underlying health condition to work from home—if doing so is reasonable—under Governor Inslee's Order on High Risk Employees and under the Americans with Disabilities Act. An employee with small children whose summer camps have been cancelled due to concerns about COVID-19 may be entitled to use leave under the Families First Coronavirus Response Act, and allowing the leave to be used intermittently each day while an employee works from home might be the best scenario for both the employer and employee.

May an employer choose which workers are recalled to the workplace and which remain furloughed or teleworking?

An employer can use neutral, business-related factors to select workers to be recalled to the workplace, such as calling back employees whose department’s work is in high demand or whose work is less conducive to telework. An employer that is simply trying to have a controlled and gradual return could ask for volunteers who are ready and willing to resume working outside their home, whether on a full- or a part-time basis. Employers may not, however, select employees for continuing telework or return to the office based on actual or perceived medical risk. For example, prohibiting older workers from returning to the office or refusing to recall an employee who is pregnant because of her pregnancy would constitute unlawful discrimination, even if those selection criteria were well-intended.

For help navigating COVID-19 in the workplace, contact a member of the Employment Group.