Alert – Be Cautious With Face Covering Exemptions

Although the Governor’s Directive 24, mandating face coverings, permits an exemption for individuals who cannot wear a face covering due to a medical condition or disability, or who are unable to remove a mask without assistance, employers should proceed cautiously here.

Employers have an obligation, under the Americans with Disabilities Act, to engage in the interactive process with an employee who requires an accommodation because of a physical or mental condition. This process generally requires analyzing each request on a case-by-case basis and considering different types of accommodations that will allow the employee to continue working. While Directive 24 states that face shields may be used by those who cannot wear a face covering, the employer should consider whether other accommodations are also possible. The ADA does not generally permit a one-size fits all accommodation, and face shields may not be the best choice in every situation.

Indeed, Nevada’s Occupational Safety and Health Administration (NV OSHA) may be taking a more restrictive approach to face shields as they are not mentioned in the Updated Guidance for Businesses Operating in Phase 2 of Nevada United: Roadmap to Recovery Plan released June 26. Moreover, the Centers for Disease Control and Prevention (CDC) does not recommend the use of face shields as a substitute for face coverings. As such, Nevada employers should not make face shields their “go-to” accommodation for each employee who cannot wear a face covering; instead, a more detailed accommodation analysis is needed.

We are presently seeking more information from NV OSHA on its position on face shields. In the meantime, we recommend that employers approach face covering exemptions as a request for an accommodation under the ADA, engage in the interactive process with each employee, and consider what type of reasonable accommodation(s) will allow the employee to keep working in the safest manner possible. We also recommend seeking documentation to support an employee’s request for an exemption from the face covering mandate, as you would with other requests for accommodations under the Americans with Disabilities Act.

Please contact a KZA attorney with your questions on this developing issue.

KZA Employer Report articles are for general information only; they are not intended and should not be construed to be legal advice. Reading or replying to such articles does not establish an attorney-client relationship. In addition, because the subject matters and applicable laws discussed in Employer Report articles are often in a state of change and not always applicable to every type of business entity or organization, readers should consult with counsel before making decisions based on the same.