Employer Mask Mandates Encounter Employee Resistance
When it comes to mask mandates, pushback from some employees as well as concern from others if mandates aren’t in place are two things employers must consider as they weigh whether to follow the U.S. Centers for Disease Control and Prevention’s (CDC’s) recent mask recommendations in areas of substantial or high transmission of the coronavirus—or even in areas that aren’t hot spots.
The CDC now recommends vaccinated people resume mask wearing in indoor public spaces in locations with substantial or high COVID-19 transmission rates. This includes schools. It also recommends that everyone in grades K-12 wear a mask indoors, including teachers, staff, students and visitors, regardless of vaccination status.
Further, wearing masks indoors is also recommended for all people—including those who are vaccinated—in counties that either average 50 or more coronavirus cases per 100,000 residents or have a test-positivity rate of 8 percent or higher.
“One of the biggest issues employers are likely to face is resistance to the CDC recommendations caused by the current COVID-19 backslide,” said Anthony Mingione, an attorney with Blank Rome in New York City. Resistance will likely be strong and come from multiple segments of the workforce, he added.
“Employees in locations that are not high-transmission areas may resist the reimposition of restrictions,” he noted. So, too, may vaccinated workers.
“And resistance from those employees who have consistently expressed vaccine and mask skepticism shows no signs of abating,” Mingione said.
Employers have a variety of tools they can use to handle resistance. Although none is a panacea, the first tool is education, he said.
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Employers also can use disciplinary measures to ensure compliance, provided they do not violate state or local laws and so long as policies aren’t applied in a discriminatory manner, Mingione said.
Pandemic fatigue is a real concern, and its effects on the workforce can't be ignored, he stated. “It is critical that employers see the silver lining,” Mingione explained, “which is that those who continue to make decisions that value all of their contributors and stakeholders will be able to foster loyalty and maybe even develop a competitive advantage.”
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“Employers that are not currently in a hot spot may see that change shortly,” Mingione said, “and employers with multiple locations are likely have at least some of their facilities in high-transmission areas already. Applying the CDC guidelines across all locations now will allow employers to get out in front of the COVID-19 rebound that appears to be already upon us. And from an administrative standpoint, applying CDC guidelines across the board will eliminate the need to have multiple paradigms and monitor transmission rates on a location-by-location, week-by-week basis.”
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“Employer Mask Mandates Encounter Employee Resistance,” by Allen Smith, J.D. was published in SHRM on August 5, 2021.