COVID-19 cases in Florida continue to increase, particularly in the Tampa Bay area. In an effort to slow the spread of the virus, Hillsborough, Pasco, and Pinellas counties have enacted ordinances requiring face coverings in most indoor settings where social distancing (of at least six feet between persons) cannot be maintained. The county ordinances broadly define “face covering,” and most cloth face coverings and disposable masks will suffice. The Hillsborough County and Pinellas County ordinances took effect at 5:00 p.m. on June 24, 2020, and the Pasco County ordinance becomes effective at 5:00 p.m. on June 25, 2020.
What Are the New Requirements? Are There Exceptions?
|Applies to indoor businesses, where social distancing cannot be maintained||✓||✓||✓|
|Includes more stringent requirements for establishments serving food or drink for on-site consumption||✓|
|Exempts governmental entities, hospitals and healthcare facilities, and emergency responders||✓||✓||✓|
|Requires employers to provide face coverings to employees|
|Encourages employers to adopt health and safety plans for COVID-19||✓||✓||✓|
|Reserves use of medical/surgical/N-95 masks for healthcare and emergency responders||✓||✓||✓|
|Acknowledges face shields as an acceptable alternative||✓|
|Requires businesses to enforce the ordinance for employees, customers, and others||✓||✓||✓|
|Contains exceptions for certain health conditions and hearing impairments||✓||✓||✓|
|Allows municipalities to enact more stringent requirements||✓||✓||✓|
|Includes anti-retaliation provisions||✓|
|Provides for non-criminal and criminal penalties, fines, and/or injunctive relief||✓||✓||✓|
|Includes enumerated affirmative defenses||✓|
Are Face Coverings PPE?
Although the local county ordinances refer to a face covering as “personal protective equipment,” recent guidance from the U.S. Department of Labor’s Occupational Safety and Health Administration (OSHA) states the opposite. The guidance includes frequently asked questions and answers that outline the differences between cloth face coverings, surgical masks, and respirators. Importantly, the guidance confirms “[c]loth face coverings are not considered personal protective equipment (PPE) and are not intended to be used when workers need PPE for protection against exposure to occupational hazards. As such, OSHA’s PPE standards do not require employers to provide them.”
Employers may determine that wearing cloth face coverings presents or exacerbates a hazard for some workers and should not be worn. OSHA’s guidance provides that where cloth face coverings “are not appropriate in the work environment or during certain job tasks (e.g., because they could become contaminated or exacerbate heat illness), employers can provide PPE, such as face shields and/or surgical masks.” In addition, cloth face coverings cannot be used in place of respirators or other PPE otherwise required by OSHA standards.
Must Employers Develop Written Policies?
The local county ordinances “strongly encourage” each employer to develop a health and safety plan requiring face coverings, adhere to Centers for Disease Control and Prevention (CDC) guidelines, and “post the plan in a conspicuous location.” To comply, employers may want to require face coverings in all indoor common or public areas and group settings, such as reception areas, break areas, kitchens, restrooms, production floors, retail stores, sales floors, and copy/equipment rooms. The CDC’s poster directing the use of cloth face coverings could be displayed at facility entrances. Drafting a written policy or plan and maintaining copies of postings and training materials could serve as documentation of compliance efforts.
What Are Some Potential Action Items?
When drafting a plan, employers may want to address how face coverings may help reduce the spread of the virus; what is meant by social distancing; the who, what, when, where, and how of wearing face coverings at work; proper use, care, and cleaning of face coverings; requirements for visitors, customers, and others in the workplace; how to request accommodations; and how to report safety and health concerns. Further, employers may want to consider incorporating the CDC’s guidance on washing face coverings and guidance on properly wearing face coverings. When implementing a plan, employers may also want to train employees and obtain signed acknowledgments of the training.
In addition, employers may want to consider how to address employee refusals to wear face coverings. Employee requests for accommodation due to medical or religious reasons may be protected by federal, state, and/or local laws, including the Americans with Disabilities Act and Title VII of the Civil Rights Act of 1964. In some circumstances, employees may be protected from retaliation under the Occupational Safety and Health Act (and the National Labor Relations Act) when they raise health and safety concerns or reasonably refuse to perform work as directed.
Employers may want to review their policies to ensure they engage in an interactive process with an employee to understand the facts surrounding the employee’s refusal and to determine whether a reasonable accommodation can be made when warranted without an undue hardship to the business. Furthermore, when refusals are not protected, employers may want to administer discipline consistently to avoid claims of disparate treatment based upon legally protected classifications.
Can Municipalities Enact Additional Requirements?
Tampa Bay–area employers may want to become familiar with any local or municipal orders enacted in jurisdictions where they conduct business, as these orders may contain additional, more stringent requirements than the county ordinances. For example, the City of St. Petersburg has enacted Executive Order 2020-24, which requires all businesses in St. Petersburg to develop written COVID-19 mitigation and contingency plans along with other measures covered in the Pinellas County ordinance. The City of Tampa has also enacted Executive Order 2020-27, which mirrors the Hillsborough County ordinance. Both cities are providing masks to individual residents while supplies last.
Ogletree Deakins will continue to monitor and report on developments with respect to the COVID-19 pandemic and will post updates in the firm’s Coronavirus (COVID-19) Resource Center as additional information becomes available. Important information for employers is also available via the firm’s webinar programs.