Update: On April 14, 2020, the New York State Department of Health (DOH) issued Interim Guidance on the Executive Order discussed below. A copy of that guidance can be found here. The LEGALcurrents article below has been updated to reflect certain aspects of the Interim Guidance.
Governor Cuomo issued a new Executive Order (No. 202.16) on April 12, 2020, requiring, among other things, that essential businesses and entities provide "face coverings" to on-site employees, which must be worn "when in direct contact with customers or members of the public." A copy of the Order can be found here.
The relevant portion of the Executive Order is short—just four sentences—and light on details:
“For all essential businesses or entities, any employees who are present in the workplace shall be provided and shall wear face coverings when in direct contact with customers or members of the public. Businesses must provide, at their expense, such face coverings for their employees. This provision may be enforced by local governments or local law enforcement as if it were an order pursuant to section 12 or 12-b of the Public Health Law. This requirement shall be effective Wednesday, April 15 at 8 p.m.”
Until additional guidance emerges, here are some answers to common questions about the new Executive Order:
When, and for how long, do I need to provide the required face coverings to employees?
Hurry up, because this new requirement takes effect tomorrow, on Wednesday, April 15, 2020 at 8:00 p.m. Like many other Executive Orders for essential businesses, this requirement appears to be in effect until at least April 29, 2020.
How do I know if I am an essential business or entity?
In response to Governor Cuomo's initial Executive Orders restricting the use of on-site employees in New York State, New York's Empire State Development Corporation (ESD) issued a list of essential businesses and entities, which it continues to update regularly. The current list can be found here.
From a practical standpoint, if you have employees who may directly interact with customers or the public, we strongly recommend that you:
- Provide employees with face coverings, regardless of your position on whether your business is "essential" and
- Direct your employees to wear the face coverings any time they interact with customers or the public.
What is a face covering?
The Order does not define the term "face covering." When describing the then unreleased Executive Order, Governor Cuomo stated that employers must provide essential workers with a "cloth or surgical facemask...when they are interacting with the public." Based on this statement, it appears that medical grade facemasks are not required in all circumstances. However, employers should do their best to secure and provide face coverings that provide as much protection as possible given the circumstances. While a properly worn bandana or scarf might meet the technical definition of a "face covering," employers should try to secure better protection if possible.
Keep in mind that some employees may require different mask coverings than others based on the nature of their position and any required PPE. Specifically, if your business was required to provide a certain type of mask for workers in certain positions before COVID-19 happened, you should continue to provide that same type of mask for those workers, although you may provide different types of masks, including cloth masks, to other workers.
Update: According to the DOH Interim Guidance, “Face coverings include, but are not limited to, cloth (e.g., homemade sewn, quick cut, bandana), surgical masks, N-95 respirators, and face shields.”
We continue to recommend that you carefully consider your specific work environment and other health and safety requirements when selecting the appropriate face covering for your employees.
Who pays for the face covering?
The employer must pay for face coverings. However, if an employee prefers to use their own face covering, that will likely suffice as long as the employee’s face covering provides adequate protection and the employer still has face covering available for that employee.
Update: According to the DOH Interim Guidance, essential businesses also must provide face coverings to “contractors, including independent contractors.”
This new requirement appears to go beyond the scope of the original Executive Order, which calls into question its enforceability. However, essential businesses should consider the feasibility of providing face coverings to contractors.
What if an employee refuses to wear the provided face covering?
As discussed below, there can be significant consequences for violations of this Executive Order. If an employee refuses to wear a face covering, employers should discipline the employee (e.g., a warning) and/or send the employee home. Repeated violations may warrant termination of employment.
Update: According to the DOH Interim Guidance, “Employees are required to wear face coverings when in direct contact with members of the public, except where doing so would inhibit or otherwise impair the employee’s health. Employers are prohibited from requesting or requiring medical or other documentation from an employee who declines to wear a face covering due to a medical or other health condition that prevents such usage.”
This guidance is unclear about an employer’s remedies against an employee who refuses to wear a face covering and is arguably inconsistent with the ADA and NYS Human Rights Law. Accordingly, we recommend addressing any such issues with legal counsel on a case-by-case basis.
What if an employee's refusal is based on a claimed disability or religious accommodation request?
You will need to deal with these situations on a case-by-case basis and engage in an interactive process with the employee to determine next steps. While the ADA and other anti-discrimination laws generally do not require employers to waive Personal Protective Equipment (PPE) requirements as an accommodation, there may be other accommodations that allow the employee to continue working without the face covering. For example, the employee may be able to temporarily work in a position where there is no interaction with customers or the general public.
What are the damages for violating the Order?
Under the Public Health Law, a civil monetary penalty may be assessed for every violation. It is unclear if the state would assess a separate "violation" for each employee who fails to wear a required face covering. Willful violations may also result in criminal penalties including imprisonment and additional fines.