October 25, 2020

Volume X, Number 299

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October 23, 2020

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City of Birmingham Issues FAQ Regarding Face Coverings and Modifies Shelter in Place Ordinance

On April 28. 2020, the City of Birmingham became the first municipality in Alabama to require face coverings in public places within the city. In response to questions from employers regarding the ordinance’s impact on employees, the city issued guidance on May 1, 2020, and updated that guidance on May 5, 2020.

In its guidance, “Frequently Asked Questions (FAQ) on the City of Birmingham’s Face Covering Ordinance,” the city explained that “if a face covering in the business place creates a safety hazard,” the employee may not be required to wear the covering. According to the FAQ, examples of safety hazards in a workplace include:

  • “[w]orking from ladders or at height”;

  • “[w]hen other respiratory protection is required”;

  • “[w]hen operating heavy machinery and the mask impairs hearing or communication”; and

  • “[m]oving heavy equipment such that it could be constituted as exercise.”

The FAQ also states that an individual need not wear a face covering if “a face covering poses greater risk to an individual’s mental or physical health than not wearing one.” The FAQ provides several examples of health and safety reasons for not wearing a face covering, including if the individual:

  • Has “documentation from a medical professional” instructing the individual that it is not necessary to cover his or her face;

  • has “trouble breathing”;

  • has “a physical disability that prevents [the individual] from wearing a face covering”;

  • has “sensory disabilities (such as autism)”;

  • is “deaf and use[s] facial and mouth movements,” including interpreters for such groups; or

  • has “mental health challenges that preclude [the individual] from covering [his or her] face.”

The FAQ also addresses office environments, advising that face coverings “should be worn in common areas like elevators, restrooms and kitchen areas in businesses, buildings, [and] facilities.” If work “is conducted with limited public interaction or on a secure site,” the FAQ states that “employers should use their best judgment in determining where face coverings should be worn.”

On May 5, 2020, the Birmingham City Council amended the face covering ordinance. The updated ordinance states that face coverings are not required for individuals “working alone in separate office spaces or in non-public workplaces where there is more than adequate social distancing area, based on the size of and number of people in the space (indoors or out of doors).” “However, such persons must be prepared to don and wear a face covering or mask when interacting with others in groups of 10 or more persons or in groups of any size where social distancing of more than six (6)

feet cannot be consistently maintained.” The city also updated the FAQ to reflect these changes to the face covering ordinance.

For employers operating in the City of Birmingham, the FAQ provides helpful guidance in determining how employers should respond to the face covering ordinance.

Safer in Birmingham Curfew

On April 30, 2020, Birmingham modified its Shelter in Place order. The modified order replaces the 24-hour curfew with a curfew between the hours of 10:00 p.m. and 5:00 a.m. This curfew does not apply to essential workers as outlined in the previous order, as well as essential activities, outdoor activities, and to individuals that must “care for or support a friend, family member, or pet in another household.” The new curfew went into effect on April 30, 2020, and will end on May 15, 2020.

© 2020, Ogletree, Deakins, Nash, Smoak & Stewart, P.C., All Rights Reserved.National Law Review, Volume X, Number 127
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About this Author

Sierra J. Gray Traditional Labor Relations Ogletree, Deakins, Nash, Smoak & Stewart Birmingham, AL
Associate

Sierra Gray is an associate in the Birmingham office of Ogletree Deakins.

She advises employers in a variety of labor and employment matters. She is dedicated to helping her clients navigate complex workplace issues by providing practical advice and efficient, innovative representation. Sierra also represents employers in all aspects of traditional labor relations including representing and advising employers in union representation and unfair labor practice charges.

Prior to attending law school, Sierra graduated magna cum laude from Tuskegee University with a...

205-714-4431
Josh Harrison, Ogletree Deakins, Lawyer, wage and hour compliance issues attorney, Birmingham, Alabama
Associate

Josh represents employers in all aspects of employment and labor law.  As a litigator, Josh is well-versed in virtually every aspect of employment litigation. From handling bench and jury trials to arguing before the Federal Courts of Appeals, he has an accomplished litigation track record spanning jurisdictions across the country.  Josh has obtained summary judgment for clients in federal employment lawsuits in a number of jurisdictions, including Alabama, Arkansas, Colorado, Georgia, Kansas, Louisiana, and Texas. Josh has successfully handled appeals before the United States Courts of Appeals for the Fifth, Tenth and Eleventh Circuits and the Supreme Court of the United States.   

In addition to his litigation practice, Josh frequently advises clients regarding wage and hour compliance issues, accommodation and leave issues, and non-competition agreements.  From multi-state corporations to start-up companies, Josh has worked closely with clients in drafting employee handbooks, developing compensation practices that comply with the FLSA, and reviewing contractual arrangements covering a wide-range of subjects. 

Josh received a "Preeminent" AV-rating by Martindale-Hubbell, was named a Super Lawyers "Rising Star" and was included in B-Metro’s “Top Lawyers.”

205-714-4414
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