By Barbara Haga, July 15, 2020
We’ve previously talked about issues related to employees who report to work with symptoms and what to do about taking temperatures when employees are reporting to the worksite. What other issues could present once more and more employees are returning to work? This month, we look at wearing masks and cleaning workspaces.
Masks are a hot button issue. I do not understand it, but I have seen enough to accept it is real. Forbes published an interesting article in May on the top reasons why people don’t want to wear them. The article explains it covers everything from claiming individual rights are being abridged to it’s not cool or for those who worry about it, not masculine.
Regardless, the OSHA guidance recommends that employers encourage workers to wear face coverings at work. The CDC guidance updated in May 2020 advises employers to encourage employees to wear cloth face coverings in the workplace, if appropriate.
When are masks not feasible? According to the CDC, it includes situations such as the following:
- Working with people who are deaf or hard of hearing who rely on lipreading.
- People with intellectual and developmental disabilities, mental health conditions or other sensory sensitivities.
- Younger children older than 2 (e.g., preschool or early elementary aged).
- People engaged in high intensity activities, like running.
- People engaged in activities that may cause the cloth face covering to become wet, such as swimming.
- People who work in a setting where cloth face coverings may increase the risk of heat-related illness or cause safety concerns (for instance, straps getting caught in machinery, chemicals accumulating in mask, etc.).
Clearly, these are not typical issues in many Federal workplaces. The question will be whether masks are encouraged or required, and, if required, what happens when employees refuse to comply.
As noted last month, several unions have posted information about concerns regarding reopening and what they see as requirements for a safe return to the workplace. AFGE’s “10 Principles on Return to Worksites” notes:
“Protections must be put in place by the agency: temperature taking at the door/masks and appropriate PPE/hand sanitizer/soap/tissues, proper distancing, dividers, regular disinfecting, air circulation, etc.”
The Federal Workers Alliance, which includes a long list of unions, including NAGE, IAFF, IAMAW, PASS, POPA, SEIU and IFPTE, demands that “[A]ll individuals present in the worksite should be expected to wear masks to reduce the possible spread of COVID-19 through respiratory droplets.” NTEU’s press release discussed whether agencies were providing hand sanitizer, disinfectant wipes and masks, but noted employee should be able to bring their own masks.
As discussed in my May column on taking temperatures, if the agency sets a mandatory requirement and is faced with employees who refuse to comply, then disciplinary action should ensue. The charge would likely be failure to follow instructions or some variation of that. Since the employee won’t be allowed in the workplace without the mask, he or she would have to be sent home on admin leave just like any other situation where you have an employee who reports not ready, willing, or able to perform work. The admin leave would extend until you could get your notice of proposed action completed. At that point, the employee could be on notice leave while waiting for the reply and decision.
The local union is not in a great position to argue against wearing masks if the national union is advocating their use. I suppose it is possible that an employee might have some medical reason (which would need to be supported with medical documentation) as to why he or she cannot wear a mask. That could create a question regarding accommodation if that underlying medical condition would rise to the level of a disability.
Or, perhaps the employee will agree to wear the mask after:
- Receiving a proposed action
- Or after the discipline is effected.
The CDC guidance on reopening addresses the need for cleaning, stating that reducing the risk of exposure to COVID-19 by cleaning and disinfection is an important part of reopening that will require careful planning. What’s in that plan? What new requirements are going to be necessary to keep workspaces as free from the virus as possible? Are there going to be issues with obtaining compliance with these reopening requirements? Could be.
The information issued by the unions may offer a clue. AFGE talked about protections that needed to be put in place by the agency, which included “regular disinfecting.”
The NTEU press release noted: “Employees remain anxious about the risks posed by taking public transportation, being in enclosed facilities with hundreds of coworkers and whether their work stations will be consistently and properly cleaned and disinfected.”
The Federal Workers Alliance post included a requirement to “assign and ensure that all shared/common areas and equipment are sanitized at regular intervals by personnel qualified and trained in disinfection of COVID-19” in their list of required agency actions. These postings seem to indicate that the expectation is that cleaning of individual workspaces is not being done by employees but by someone else.
Is it reasonable to expect there are agency personnel or contractors available with the necessary time, products, and training to do all of this? This may be within the realm of existing contracts and resources for some agencies.
It seems likely to me some agencies will need employees to take care of some of this. That means cleaning of individual keyboards, desk, phones, etc. It could extend to common areas such as counters in break areas, refrigerator doors, coffee pots, and door handles. Copiers, faxes, hole punches, and commonly used staplers might also make the list.
Encouraging voluntary compliance with these kinds of tasks is probably the easiest approach. Perhaps employees in the unit could draw up a rotational schedule for the tasks covering common areas. An employee might volunteer to do the cleaning. But, I believe it would be naïve to think that there won’t be some who say “that’s not in my p.d.” Bottom line: If it is a requirement, not complying would be a failure to follow instructions, although perhaps not at the same level as with the masks.
These are actions that have likely not been carried out before. However, as has become painfully apparent, it’s a brand new world. Haga@FELTG.com