Facial Coverings Required in Washington Workplaces
Beginning June 8, 2020, cloth face coverings and masks must be worn by all workers in all workplaces and job sites in Washington state.
Let’s face it, no one wants to work all day with a mask on. There are some exceptions to the requirement, and workers with strong enough feelings against masks will seek to capitalize on those exceptions. In the end, the loopholes are few, and masks worn by all inside everyone’s offices and stores and on job sites will become the norm.
Governor Inslee’s Order
On May 31, 2020, Governor Jay Inslee issued two statements addressing masks in Washington State workplaces. While his statements resolve the question of whether employees must wear masks when in workplaces, they don’t answer all of the “yeah, but . . .” questions that employers will receive (and which I have already received).
Those who work in professional service and other office-based businesses – such as accountants, attorneys, engineers, financial advisors, information technologists, insurance agents, tax preparers, and other office-based occupations – like to ask these kinds of questions about masks:
- Do I really need to wear a mask if I am in my own individual office with my door closed?
- Do I really need to wear a mask all day while I am sitting at my desk if the next desk is more than six feet away?
- I can take my mask off when I eat lunch or drink my coffee, right?
Yes, you may remove your mask while drinking your coffee or eating your lunch, but the other two questions are a little more complex.
Safe Start–Stay Healthy Proclamation
On May 31, Governor Inslee issued a new proclamation to replace the expiring Stay Home-Stay Healthy proclamation, which was the order issued in March 2020 sheltering in place all Washington residents except those involved in delivering or in need of essential services. The May 31 proclamation is referred to as the Safe Start-Stay Healthy proclamation because it merged concepts in the Stay Home proclamation with the Governor’s Safe Start Washington plan for phased reopening of activities and business in the state. The May 31 proclamation remains in effect through July 1, 2020. You will find a full copy of the Safe Start–Stay Healthy proclamation here.
The May 31 Safe Start-Stay Healthy proclamation addresses face coverings in the workplace and attempts to answer the many lingering questions employers are being asked about masks. It establishes the requirement that, beginning on June 8, 2020, all employees must wear facial coverings when on the job, except when working alone or when the job has no in-person interaction. In turn, all employers must provide cloth facial coverings to employees, unless their exposure dictates a higher level of protection.
Safe Start Washington Phased Reopening Plan
In conjunction with the Safe Start-Stay Healthy proclamation, Governor Inslee issued the Safe Start Washington Phased Reopening Plan, which you will find here. This plan updates the process for moving Washington State through a phased reopening county-by-county.
Governor Inslee doubled-down on the topic of cloth face coverings and masks in the Safe Start Washington Phased Reopening Plan. In addition to reaffirming the requirement for masks, he expanded the list of exceptions. Masks are not required: (a) when working alone in an office, vehicle, or at a job site; (b) if the individual is deaf or hard of hearing, or is communicating with someone who relies on language cues such as facial markers and expression and mouth movements as a part of communication; (c) if the individual has a medical condition or disability that makes wearing a facial covering inappropriate; or (d) when the job has no in-person interaction. The expansion of the list of exceptions did not add clarity on the questions that employers will most often face.
In turn, beginning June 8, all employers must provide cloth facial coverings to employees, unless their exposure dictates a higher level of protection under the Department of Labor and Industries’ safety and health rules and guidance. Employees may choose to wear their own facial coverings at work, provided they meet the minimum requirements.
Employers must further post a sign strongly encouraging customers, clients, and visitors to wear cloth facial coverings, and prominently display the sign at the entrance to the business so that it is immediately noticeable to all entering the premises. Governor Inslee encourages all employers to require customers, clients, and other visitors to wear cloth facial coverings, in order to protect their employees.
Unanswered Questions
Neither the Safe Start-Stay Healthy proclamation nor the Safe Start Washington Phased Reopening Plan offers guidance on the meaning of the terms “working alone” or “in-person interaction.” That lack of definition will prompt questions from workers who are looking for loopholes to avoid wearing masks all day.
Working Alone in an Office
A worker need not wear a mask when “working alone in an office.” Workers with their own individual offices with doors will be quoting this phrase with the hope that they can remove their masks when inside their offices behind closed doors. Their employers will field the same question that I have already received multiple times: “I have my own office and when I go into my office by myself and shut my door, I don’t need to wear a mask, right?”
Governor Inslee does not expressly answer this question in the statements he issued on May 31. However, I find the answer through reading all the industry-specific requirements that Governor Inslee has issued over the past month for purposes of the Safe Start plan. Many of the industry-specific requirements require that “cloth facial coverings must be worn by every individual not working alone at the location.” In fact, this is the exact language set forth in the industry-specific requirements issued for professional services and other office-based businesses. Those industry-specific requirements that do not use the term “location” use the term “jobsite” instead. However, none of them refer to individual offices within a location or within a jobsite.
Reading the May 31 statements in context with the prior industry-specific requirements, I believe “an office” refers to the entire office place – as in the location or the job site – and not an individual office within the jobsite. For example, if early in the morning there are two people working in a business that occupies the entire 36th floor of a high rise building, one is in the copy center in the interior of the floor and the other is in an exterior, window office with her door closed, both of the employees must wear masks.
Reasonable minds can differ over the meaning of “working alone in an office.” But your business will have to determine which view you will take, and then apply that view consistently. Erring on the side of caution so as to ensure compliance with Governor Inslee’s orders would call for wearing masks whenever there is more than one worker at the location or on the jobsite, or at “the office” as the case may be. I expect that in time the Governor will provide further guidance on this question, and I have a high degree of confidence that he will say that “an office” really means “the office,” as in the entire workplace.
In-Person Interaction
A worker need not wear a mask “when the job has no in-person interaction.” Workers who keep to themselves during the work day will be quoting this phrase with the hope that they can remove their masks when at their desks or otherwise at work. Employers will receive questions along the line of, “If I don’t talk to anyone all day, then I don’t need to wear a mask, right?”
Again, Governor Inslee offers no guidance as to the meaning of “no in-person interaction.” But I am pretty sure that he is not giving a pass to workers who decide to be anti-social. The key here are the words that precede the phrase “no in-person interaction” and thus qualify the phrase. Those words are “when the job has.” By using these words, Governor Inslee is saying that masks need not be worn by workers holding jobs that involve no in-person interaction; he is not saying masks need not be worn by workers who have no interaction with others.
What are jobs with no in-person interaction? I’m not sure, but there are not many. Perhaps a zookeeper? A night watchman? A lighthouse keeper? A draw-bridge tender?
Bottom Line
All workers in Washington state should now be wearing face coverings or masks while in or on the jobsite whenever more than one person is there.
With respect to the customers, clients, and others visiting businesses and stores, Governor Inslee “encourages” employers to require the wearing of face coverings inside your business to protect your workers.
There are already a number of counties requiring cloth face coverings in indoor and outdoor public places where six-foot distancing cannot always be maintained. Those counties include Benton, Franklin, King, Kittitas, San Juan, Thurston, and Whatcom. For a summary of King County’s face covering requirements, click here. Some counties, like San Juan, go beyond public spaces and require businesses to require masks as a condition to entry by customers.
Helsell Fetterman LLP closely follows Governor Inslee’s proclamations, guidance, and statements on reopening business in Washington and we are available to advise and assist you in tailoring your reopening and operations to meet these evolving standards. For further information or assistance, please contact Scott Collins (scollins@helsell.com).