Essential New York and Maryland Employers Must Provide Protective Face Coverings Amid COVID-19 Emergency

Ruth A. Rauls, Erik P. Pramschufer

The list of Executive Orders issued in response to the COVID-19 pandemic affecting New York employers continues to grow. On April 12 Governor Cuomo signed Executive Order No. 202.16 directing that face coverings be worn in the workplace. The Order went into effect Wednesday, April 15th at 8 p.m.

The Order requires that employees for all essential businesses or entities who are present in the workplace wear face coverings when they are in direct contact with customers or members of the public. Businesses must provide employees with protective face coverings at the employer’s expense. Employers are also required to ensure that their employees are wearing their face covering when interacting with customers or the public.

The Executive Order does not specify exactly what type of “face covering” is required, but the Center for Disease Control (CDC) recently published guidance on its website concerning how to effectively use (and make) cloth face coverings (here). Amid concerns over the supply of medical grade masks, employers who are required to abide by this order should be prepared to supply suitable cloth face coverings if the alternative is noncompliance. Other alternatives to comply with the Executive Order may include providing employees with bandanas or scarves, however these items are not included in the coverings suggested by the CDC.

New York previously ordered all non-essential businesses cease operations and provided a list of essential businesses here. By way of example, this  includes  grocery and convenience stores, as well as restaurants operating takeout/delivery service.

On April 15, 2020 Gov. Cuomo expanded upon his Executive Orders by issuing Executive Order 202.17, which requires all individuals over the age of two to wear a mask or face covering in public places where they are unable to maintain social distancing (e.g. on public transit). While of course this Order is significant in terms of combatting COVID-19, it appears on its face more pointed toward the general public, than directly at setting requirements for employers.

The latest New York Executive Orders are less detailed for employers than the Executive Order released by New Jersey Governor Phil Murphy last week (which we discuss here). However, all of these orders demonstrate a trend in Executive Orders that are putting legal force behind evolving guidance from the CDC, particularly the CDC’s guidance regarding face coverings.

Also on April 15, 2020 Maryland Governor Larry Hogan announced that he will sign an executive order requiring all retail employees and customers to wear face coverings, as well as employees working in other customer-facing essential businesses. In his press conference Gov. Hogan added that scarves, bandanas and cloths masks are all sufficient face coverings for purposes of complying with the Order, and there is no requirement for businesses to purchase medical grade masks for their employees. Similar to the CDC guidance, Gov. Hogan’s Order is expected to mandate social distancing protocols and require preventative cleaning on touch points (carts, credit card machines, checkout kiosks, etc.). As of this posting, Gov. Hogan’s Executive Order has not yet been published on his website, and additional details may be available when it is. Gov. Hogan’s order goes into effect at 7 a.m. on Saturday, April 18.

Regardless of what state you are in, we encourage employers covered by any of the Executive Orders to not order or use face masks that are needed by first responders, but instead use the alternative form of face coverings.

All of this news illustrates that even if no Executive Order is in place in an employer’s state, staying up to dates on the latest CDC guidance is essential. If you have any questions concerning your business’s obligations under Executive Order 202.16, or any other restrictions promulgated to combat the spread of COVID-19, please reach out to your normal Saul Ewing labor and employment attorney.