August 14, 2020

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Tampa Bay’s New Face-Covering Requirements—We’ve Got You Covered

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.

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 the New Requirements? Are There Exceptions?

 

Hillsborough

Pasco

Pinellas

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

 

 

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.

© 2020, Ogletree, Deakins, Nash, Smoak & Stewart, P.C., All Rights Reserved.National Law Review, Volume X, Number 179

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About this Author

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Dee Anna began her career in the labor and employment law field and continues to focus her practice on representing management in all aspects of labor and employment law compliance. She enjoys counseling clients to solve tough issues and enthusiastically defends them when necessary. Dee Anna has defended management in both federal and state courts, before numerous government agencies -- including the DOL, EEOC, NLRB, OSHA, FCHR, and OFCCP -- and has represented employers in audits performed by the Department of Labor Wage and Hour Division, OFCCP, and OSHA.

On a regular basis, Dee...

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Phillip Russell, Ogletree, employment attorney
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Phillip Russell is a practical labor and employment lawyer who represents businesses in a wide range of labor and employment law matters, including workplace safety and health (OSHA), traditional labor relations (staying union-free), unfair competition and trade secrets litigation, employment litigation defense, and advising and counseling employers on workplace legal compliance issues.  Phillip represents clients in the construction, staffing, technology, manufacturing, banking, and other industries.  He is also a nationally recognized speaker and author on labor and employment law issues.  

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