Working Together

On Friday afternoon (April 17, 2020), Governor Lamont issued Executive Order 7BB (“the Order”) requiring persons to wear “face-coverings” (e.g., masks) in public, effective as of 8:00 p.m. on Monday, April 20, 2020.  This Order expressly supersedes and preempts any municipal orders on this issue.  In addition to the impact on the public at large, the Order (and implementing guidance) will directly impact the operations of those essential businesses that are still operating.  The Order required the Commissioner of the Department of Economic and Community Development (“DECD”) to issue updated versions to its “Safe Workplace rules” and “Safe Stores rules” in order provide additional requirements for face coverings within those settings (the “DECD Rules”).  The DECD’s rules have a direct and immediate impact on public and private employers in this state.

The Executive Order and General Requirement

The Order specifically requires any person in a public place in Connecticut “who is unable to or does not maintain a safe social distance of approximately six feet from every other person” to cover their mouth and nose with a mask or “cloth face-covering.”  In addition, the Order specifically requires individuals to wear a mask or cloth face covering whenever using the services of any taxi, car, livery, ride-sharing or similar service or means of mass public transit, or while within any semi-enclosed transit stop or waiting area.

The Order creates an exemption to the obligation to use a mask or cloth face covering for 1) anyone for whom doing so would “be contrary to his or her health or safety because of a medical condition,” 2) a child in a child care setting, 3) anyone under the age of two years, or 4) an older child if the parent, guardian or person responsible for the child is unable to place the mask safely on the child’s face.  

Perhaps creating a significant loophole, the Order provides that a person declining to wear a mask or face covering because of a medical condition will not be required to produce medical documentation verifying the stated condition.  The Order also does not specify a direct consequence for disobedience of this new requirement.  

The DECD Rules

The DECD Rules, as described on its website (as of April 20, 2020), provide:

• Each employee shall be required to wear a mask or other cloth material that covers his or her mouth and nose at all times while in the workplace.
• Employers shall issue such masks or cloth face coverings to their employees.
• In the event an employer is unable to provide masks or cloth face coverings to employees because of shortages or supply chain difficulties, employers must provide the materials and CDC tutorial about how to create a cloth face covering, or compensate employees for the reasonable and necessary costs employees expend on such materials to make their own masks or cloth face covering.
• Nothing in these rules shall require the use of a mask or cloth face covering by anyone for whom doing so would be contrary to his or her health or safety because of a medical condition. If a person declines to wear a mask or cloth face covering because of a medical condition as described above, such person shall not be required to produce medical documentation verifying the stated condition.

(Emphasis Added.)

Key Take Aways For Employers:

Unlike the general requirements of the Order, there does not appear to be a “social distancing” exception for wearing a face covering or mask at work.  As such, employees will be obliged to wear such coverings even if they are keeping six feet from each other (and, ostensibly, can only avoid wearing a face covering due to his or her health condition).  In addition, the DECD Rules specifically place an obligation on the employer to either to 1) provide the masks/face coverings, or 2) provide or pay for the materials necessary to create them, along with links to the CDC instructions on how to create them. 

The DECD Rules do not answer several questions:

• If the employer provides the mask-making materials, or if the materials are not provided by the employer, and the employer instead merely offers to compensate the employee for the costs of the materials, must the employee immediately create the covering. 
• How much time does the employee have to create a mask?  
• Can the employee stay out of work and be paid due to the employer not immediately providing the mask?

It is likely that there will be some lag time as outlined above, and while it is understandable that an employee may be given some leeway, it is reasonable to assume that the employer can set a reasonable expectation for the employee to create the covering.  But the DECD Rules do not address these concerns. 

Employers who are facing this mandate should not forget to continue to pay attention to the underlying obligations from prior Executive Orders and guidance, including other DECD requirements for a safe workplace.  In addition, such essential employers (including non-profits and public sector entities) should not forget that they are required to employ “to the maximum extent possible” all telecommuting and work from home procedures that they safely can employ.  Wherever possible, further telework may be an option to avoid this additional mask mandate.     

Pullman & Comley’s attorneys are available and ready to help.