Texas Gov.'s Mask Stance Won't Shift Employer Safety Plans

By Michelle Casady
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Law360 (May 19, 2021, 8:11 PM EDT) -- Although the governor of Texas has issued a series of orders easing government-imposed COVID-19 restrictions, private employers are still likely to be cautious about worker safety, particularly in light of federal requirements to provide safe workplaces.

Starting Friday, Texas cities and counties will no longer be able to mandate the wearing of face masks under Texas Gov. Greg Abbott's Tuesday order, which carries a $1,000 fine for violators. After June 4, public schools can't require masks be worn by students, teachers or any campus visitors. Those orders came after Abbott said Monday that Texas is opting out of supplemental unemployment benefits that the federal government passed in response to the pandemic.

The governor frames the changes as a need in order to get people "back to work" and to leave it up to individual Texans to "decide their best health practices."

But most private employers in Texas are likely to continue requiring some COVID-19 protocols for workplace safety, employment experts say.

"I do not think the governor's order will make it more difficult for employers to enforce their mask policies," Amy Karff Halevy, a labor and employment partner at Bracewell LLP, told Law360.

Most Texas employers have been following federal guidance from the U.S. Occupational Safety and Health Administration and the U.S. Centers for Disease Control and Prevention in developing masking policies and other COVID-19 protocols for workplace safety, Halevy added.

"These things we're seeing from government agencies and the governor, those are really just guidelines," said Kelley Edwards, managing shareholder of Littler Mendelson PC's Houston office and co-chair of its energy industry group who focuses on labor and employment matters. "There are still legal obligations that employers have to comply with, including their obligation to provide a safe workplace."

But Edwards said a lack of explicit guidance from OSHA, which she described as being "eerily quiet" during the pandemic, has left some employers unsure about whether they're protecting themselves against coronavirus-related liability.

"I think the real risk is, for the cautious employer, if you're not requiring mask use for vaccinated employees but not cracking down on who's vaccinated, are you unknowingly fostering a workplace that may not be as safe as it needs to be?" Edwards said. "I think that's the unanswered question right now."

Exempt from the governor's latest orders are state-funded living centers, government hospitals, state jails and prisons. The loosening of restrictions in Texas comes on the heels of the CDC's announcement last week that fully vaccinated people don't need to wear masks inside or outside in most settings.

OSHA has said that in light of the new CDC guidance, it will be reviewing and updating its coronavirus precaution recommendations. It is asking employers in the interim to "refer to the CDC guidance for information on measures appropriate to protect fully vaccinated workers."

Those changes on the federal level have prompted many employers to take a closer look at their own policies and think about whether to loosen them, said Jamila M. Brinson, a labor and employment partner at Jackson Walker LLP.

She said the new order from Abbott is unclear in one regard — whether employers can call on law enforcement to enforce trespassing laws if someone is breaching a mask policy.

"But with regard to their employees, employers retain the responsibility under OSHA to ensure safe and healthful working conditions for workers," she said. "Currently, OSHA's position is that employers should implement COVID-19 prevention measures in the workplace, including the use of face coverings."

Edwards said geography and company size seem to be playing a role in how employers are navigating reopening. She said Texas clients and smaller employers are embracing more of an "honor system" approach to vaccines, while larger corporations mull the possibility of a vaccine mandate or other incentives.

"It's interesting. It really hinges upon the company culture and the viewpoints of leadership," she said of the varied approaches. "Our customer-facing clients, like retail, hospitality, those clients and companies are not really in a position right now where they're thinking about eliminating masks. But in the corporate environment is where we're really seeing these two different approaches."

--Editing by Orlando Lorenzo and Daniel King.

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