Mandate or not, employers should tread carefully regarding mask requirements

Whether or not Gov. John Bel Edwards extends Louisiana’s mask mandate later this month, employers should tread carefully when it comes to their own mask policies, employment attorneys say. 

Louisiana lawmakers have granted companies some protection from liability for COVID-19 infections that allegedly happen in their workplaces, though the protection is contingent on following official guidelines. 

“As an employer, you’re making yourself vulnerable to claims if you’re not trying your best to comply with the guidance that’s out there,” says Vicki Crochet, who leads the employment, labor and benefits group at Taylor Porter. 

That said, Crochet says she hasn’t seen much effort to enforce the mask mandate on businesses. Companies holding private events that include non-employees can ask attendees to wear masks but it’s hard to make them do it, she adds.

“Nobody’s going into private workplaces to see if employers are enforcing the mask mandate,” she says. 

But if Edwards allows the mask mandate to expire, Crochet says she “certainly would not advise” an employer to order employees–or visitors, for that matter–not to wear masks if that’s what makes them feel most comfortable. 

Camille Bryant, a member of the labor and employment and product liability group with McGlinchey Stafford, says state regulators have been patient with businesses that are out of compliance with the state’s shifting COVID-19 policies, choosing to help companies comply rather than focus on punishment. But the federal government’s Occupational Safety and Health Administration, better known as OSHA, is more aggressive and has the ability to “wreak havoc on your business,” she says. 

Under OSHA, employers have a “general duty” to provide a safe workplace for employees and visitors alike, Bryant says. 

In the absence of a mandate, Bryant says some employers have inquired about banning masks for employees, sometimes because they think it would be better for morale or would send the message that things are back to “normal.” That’s something employers might consider on a case-by-case basis, possibly in conjunction with a vaccination mandate. 

Employers should avoid segregating their employees based on their vaccination status, Bryant adds. Some might be avoiding vaccination because of a religious objection or a disability, and discriminating against them could run afoul of Title VII of the Civil Rights Act. 

Edwards’ current mask order expires Oct. 27. A state appeals court has dismissed a lawsuit involving Republican lawmakers’ efforts to block coronavirus restrictions Edwards imposed last year. 

The 1st Circuit Court of Appeal in Baton Rouge didn’t rule on the merits of the case. It said the issue was moot because the specific executive order the lawsuit challenged expired last November.

Louisiana House Republicans have vowed to try again to end the emergency order that allows Edwards to maintain the mask mandate. Despite Edwards’ arguments, the courts have not found to be unconstitutional the statute that allows a single chamber of the Legislature to terminate a public health emergency, “and there is nothing that prohibits the Legislature

from preparing another petition to terminate or taking whatever action it deems appropriate relative to COVID-19 and the current state of public health emergency,” Attorney General Jeff Landry says in a letter to House Speaker Clay Schexnayder.