Eric B. Kjellander
Benesch Friedlander Coplan and Aronoff, LLP
Since the onset of COVID-19, a common question has been do I need to wear a mask? At best, recommendations from our health and political leaders have been confusing and disjointed. As state and local governments pivot to reopening the economy and modifying “stay-in-place” orders, the question of who needs to wear a mask looms large.
Recently, Governor DeWine announced Ohio would phase in the opening of specific sectors of the economy. To achieve those ends, certain safety measures must be implemented. Initially, as it related to facial covering, the order mandated facial protection for all. In response to significant negative public reaction, the order was quickly modified and clarified.
As it currently stands, customers of Ohio businesses are strongly recommended, though not required, to wear facial protection. For employers, while on the job, all employees must wear facial protection with certain identified and limited exceptions. Employees are not required to wear masks under the following circumstances:
· It is prohibited by law or regulation;
· It is against documented industry best practices;
· It is not advisable for health purposes;
· It is in violation of a company’s safety policies;
· The employee is sitting alone in an enclosed work space;
· There is a practical reason it cannot be worn while working.
In the event one of the above applies, the administration expects businesses to provide some type of written justification. At present, the form of justification is undefined and it is up to businesses to interpret the state’s direction.
Until further clarification is provided, employers should document in some form the applicable justification that would excuse an employee from wearing facial covering. To track the justifications, employers should consider keeping a log (see example below) broken down by employee identifying the applicable justification.
| Employee | Justification |
| John Doe | Ohio Revised Code §___ |
| Jane Doe | ASTM Standard ____ |
| John Smith | Company Safety Policy, Section ___ |
| Jane Smith | Job as ___ requires J. Smith to work independently in an enclosed space at all times. The daily job responsibilities include ____ and ___ which are all done independently. |
| Jim Young | Health reason1 |
To be clear, if employees can wear masks and effectively perform their work, they should continue to wear masks. While a log is not required, it is a reasonable and sensible approach at good faith compliance with the government’s order. From an efficiency standpoint, a log allows an employer to quickly ascertain why a particular employee isn’t wearing a mask. The state is working on a specific set of guidelines and FAQs to provide additional guidance to businesses as they reopen. As more information becomes available, we will update this guidance consistent with the recommendations of health officials.
[1] Employers should be cautious with employee-specific health information. Employers should not enter the specific reason in a log (use “health reason” or something generic), and any documentation about the reason (i.e., doctor’s note) should be kept in a separate medical file for the employee and shared only with those who need to know. This is consistent with longstanding federal guidance regarding the maintenance of medical information under the Americans with Disabilities Act.
