Mask Wearing and Other New Safety and Health Rules – Employees and Customers May Express Their Opinion. Be Ready to Reply.

By Michael Burns, courtesy of SBAM Approved Partner ASE

Although employers will be implementing many new safety and health practices in the coming weeks and months, there will also be employee relations challenges as a result. Some employees will come back believing that wearing a face mask at work is a request not a requirement. Some may even take rules requiring wearing a face mask as a political challenge or an afront to their personal liberties. Employers will need to be ready to communicate why the employee cannot ignore or refuse to comply with face mask and other new safety policy and practices.

As we have stated on ASE’s Coronavirus Resources webpage and in past articles, OSHA/MIOSHA requires employers to provide necessary personal protective equipment (PPE). OSHA does not require employees to wear or use it. That is the responsibility of the employer.

Employers opening shop again and bringing employee’s back to work there will need to develop safety rules.  Please see MIOSHA’s COVID-19 Workplace Guidelines. Just as some employers have required the use of safety glasses or steel tipped shoes, employers will need to set up rules that require the wearing of a face mask (that the employer is providing), cleaning of work areas with cleaning solutions /disinfectant, and not using other employees’ phones or computers just to name a few.

Most returning employees will understand and will comply with mask wearing requirements, but what about the few that state they cannot (or will not) wear a face mask? First, tell managers and supervisors not to let a rule’s infractions such as not wearing a mask go. They must engage the employee by asking why they are not wearing a mask as required as they would for any other safety infraction. Listen to the reason because there are certain medical conditions or other circumstances that may require other approaches to compliance or disability accommodation. If so, the employer needs to engage in a dialogue with the employee to determine if compliance can be achieved by accommodation, or if not, the employee has to be put on some type of leave.

However, there will be employees that will refuse to wear a mask for no other reason than they do not want to. This should be treated as a rule’s infraction like any other breach.  An employer’s disciplinary process should be followed. It is recommended as a first step; however, to explain the infraction and request compliance again.  If the employee still refuses, then send them home with pay and the clear understanding that when they return they must wear a mask and be in compliance with company safety rules or their employment will be terminated – presuming of course that this is the standard practice for any safety rules infraction. Employees in bargaining units will be subject to the collective bargaining agreement’s disciplinary process.

But what about the employee that follows the rules, mask on, proper distancing, not touching other people’s equipment, etc. but engages in a loud and constant campaign of badmouthing the policies and the employer?  Jonathan Segal of Duane Morris LLP states that this is an attack upon the company’s culture of safety. Like an employee that vows not to make sexist or racist comments but communicates their displeasure about having to censure themselves on an ongoing basis because of these “stupid” rules. Again, the employer (manger/supervisor) needs to engage with the employee telling them to stop their griping because they are impacting the work environment. Remember, this safety device is to protect against the consequence of not wearing a mask which could be death.  If the behavior continues, further discipline or ultimately discharge will result. Remember to document!

Beware the group complaint. Under the National Labor Relations Act (NLRA) both union and non-union employees have the right to engage in concerted activity that is for their “mutual aid or protection.”  If more than one employee is stating they will not wear the mask, they may be protected by the NLRA. Again, employers have the right to enforce stated safety rules. Make sure this situation is approached carefully. The NLRA is not a protection against discipline for breach of clearly stated rules, but firing a group of employees for stating an objection may be protected. The action in response to a rule breach is different from a response to employees engaging as a group in protected concerted activity states Hugh Murray of McCarter & English LLP.

And lastly what about customer-facing employees and rule enforcement? Requiring employees to wear masks to serve customers is a no-brainer. We are talking about customers or guests that refuse to wear a mask while at the business site. For many employers that do not invite the public in it is a simple matter of requesting the guest that refuses to wear a mask to leave. But where a business invites the public in (stores, dry cleaners), employers are assigning employees that may be unprepared to communicate the requirement of wearing masks and other safety measures. These employees are put in a difficult situation and if not trained properly on how to handle reticent customers, may not just create an unhappy customer but have to handle a more aggressive and potentially volatile response. It is recommended employers train or at least coach employees on how to properly respond to customers or other visitors that refuse to comply with face mask and other safety requirements.

Some customer response guidelines from a customer service professional include:

There have been reports of employees being attacked and even shot by persons being told they have to wear a mask to enter. The employee assigned to monitor and communicate the rules should understand what they can do when a customer becomes unreasonable and potentially violent. They should discontinue the engagement and request assistance from management.