Operations
Masks 'not optional' for restaurant workers
Although Americans all over the country are ditching their masks, restaurant employees can't throw them out any time soon.
May 18, 2021 by Cherryh Cansler — Editor, FastCasual.com
Although Americans all over the country are ditching their masks, restaurant employees can't throw them out any time soon.
"While the CDC changed their guidance, OSHA has not changed theirs," Larry Lynch, SVP of science and industry at the National Restaurant Association, told FastCasual. "So, requirements that were in place from OSHA regarding safety measures to protect employees from exposure still stand."
Also, there are still 20 states with mask mandates still in place.
Rebecca Bernhard, a partner at the international law firm Dorsey & Whitney, agreed with Lynch, noting that OSHA announced it was reviewing the recent CDC guidance and would update its materials accordingly but employers may wish to continue requiring employees — regardless of vaccination status — to wear a mask and/or physically distance in any indoor setting.
"Similarly, employers must still establish and implement a COVID-19 Preparedness Plan, which addresses topics such as hygiene procedures (including wearing face coverings where appropriate) and physical distancing in the workplace," she told Fast Casual.
Lynch, who admitted the NRA still had many questions for the CDC about how to implement the latest guidance, said the restaurant industry was encouraged by the potential the CDC decision has to help move the industry closer to being fully reopened in all communities where the virus was not an immediate threat.
But even when those rules are clearer, restaurants will still need to be careful when deciding how to proceed, Bernhard noted.
"First, employers deciding whether to eliminate masking requirements in the workplace should carefully consider whether and how they will ask employees to provide proof of vaccination, and they must be aware of relevant legal considerations if making those inquiries," she said. "For example, several jurisdictions have implemented (or are considering) laws banning employers and other institutions from requiring 'vaccine passports' or other methods of requiring individuals to provide proof of vaccination to gain access, entry or service."
Employers also should be mindful that employees may choose not to be vaccinated for religious or medical reasons.
"Employees should not be treated in such a way that they feel discriminated against for those reasons," Bernhard said. "Employers who choose to selectively lift masking requirements only for individuals who have been vaccinated may face risks of discrimination claims on those bases. Proper planning is important to mitigate those risks."
Paying attention to local laws
Restaurants must also keep in mind that CDC recommendations don't trump local laws. For example, the city of Minneapolis has announced plans to maintain its indoor mask mandate for the time being
"St. Paul also announced it will maintain its mask mandate on the heels of Minnesota lifting its mandate," Bernhard said. "Accordingly, employers with operations in Minneapolis, St. Paul, or other jurisdictions still enforcing a mask mandate should continue to abide by applicable local requirements."
Even as state and local mask mandates are lifted, employers may ultimately choose to implement their own mask mandates at the workplace, provided they are acting in accordance with applicable state or local law. For workplaces choosing not to mandate masks, however, employers should consider encouraging employees to act within their own comfort level and to continue wearing a mask at the workplace if desired, Bernhard said.
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