Should You Consider Clear Masks & Other Accommodations for the Hard of Hearing?

Client Alert

February 1, 2021

Should You Consider Clear Masks and Other Accommodations for the Hard of Hearing?

At the end of January Nike agreed to a settlement requiring its California workers to be provided with clear masks. The settlement was reached to end a class action alleging that the company’s policy requiring store employees to wear masks prevents deaf and hard-of-hearing customers from reading employees’ lips.

The settlement requires that Nike provide clear masks to employees when they need to assist deaf or hearing impaired customers, but does not require clear masks at all times. The settlement also requires stores to carry clean pens and paper if a deaf or hearing impaired customer wishes to write their communications with employees. Finally, the settlement requires Nike to post signage outside its stores alerting customers about their right to access these accommodations.

This settlement serves as a heads-up to employers whose employees potentially interface with deaf or hard-of-hearing customers. Employers should consider their policies and determine what reasonable accommodations can be made so that their employees can interface with people with disabilities such as those who need to read lips or write to communicate.

Department of Labor Issues COVID-19 Workplace Guidance

On Friday, January 29, the Department of Labor issued workplace guidance regarding precautions to prevent the spread of COVID-19. The guidance makes clear that it advisory in nature and contains recommendations but is not a standard or regulation, and creates no legal obligations. California employers should note that much of the DOL’s guidance is already covered under the regulations and guidance issued by Cal/OSHA and the California Department of Public Health.

Even without any binding effect, the guidance should be reviewed by employers who are working to prevent the spread of COVID-19 in the workplace. A few of the areas that the guidance focuses on are highlighted below, and the full guidance can be found here.

Requirements for a COVID-19 Prevention Program. The guidance reiterates that a COVID-19 prevention program requires (1) assignment of a workplace coordinator, (2) identification of where and how workers may be exposed to COVID-19, i.e. a hazard assessment, and (3) identification of the measures that will limit the spread of COVID-19 at the workplace including implementing physical distancing, installing physical barriers, and using PPE among other considerations.
Considering protections for workers at higher risk for severe illness. While generally covered by state guidance, in addition to general protocols applying to all employees, employers who employ older adults or others who have serious underlying medical conditions should consider implementing greater protections for those employees. Where feasible, employers should consider reasonable modifications for workers identified as high-risk who can do some or all of their work at home (part or full-time), or in less densely-occupied, better-ventilated alternate facilities or offices.
Implement a System for Communicating with Workers in a Language They Can Understand. Employers must be cognizant of the language in which they communicate with employees if they have a multi-lingual workforce. Employers should communicate to workers, in a language they can understand and in a manner accessible to individuals with disabilities, all training materials, and policies and procedures implemented for responding to sick and exposed workers in the workplace.
Importance of Following CDC Cleaning and Disinfection procedures When People With a Suspected or Confirmed COVID-19 Case Have at the Workplace. The guidance directs employers to follow CDC recommendations if someone who has been in the workplace is suspected or confirmed to have COVID-19. This includes:

1. 1. Closing areas used by the potentially infected person for enhanced cleaning.
  2. Opening outside doors and windows to increase air circulation in the area.
  3. Waiting as long as practical before cleaning or disinfecting (24 hours is optimal).
  4. Cleaning and disinfecting all immediate work areas and equipment used by the potentially infected person, such as offices, bathrooms, shared tools and workplace items, tables or work surfaces, and shared electronic equipment like tablets, touch screens, keyboards, and remote controls.
  5. Vacuuming the space if needed. Use a vacuum equipped with a high-efficiency particulate air (HEPA) filter, if available. Wait until the room or space is unoccupied to vacuum.
  6. Providing cleaning workers with disposable gloves. Additional PPE (e.g., safety glasses, goggles, aprons) might be required based on the cleaning/disinfectant products being used and whether there is a risk of splash.
  7. After cleaning, disinfecting the surface with an appropriate EPA-registered disinfectant on List N: Disinfectants for use against SARS-CoV-2.
  8. Following requirements in OSHA standards 29 CFR 1910.1200 and 1910.132, 133, and 138 for hazard communication and PPE appropriate for exposure to cleaning chemicals.

Informing Employees that they are Protected From Retaliation and Setting up an Anonymous Process for Workers to Voice Concerns About COVID-19 Related Hazards. It bears repeating that employers must inform employees that they will not be retaliated against if they report COVID-19 exposure or symptoms or if they voice concerns regarding potential hazards. Additionally, Section 11(c) of the OSH Act prohibits discharging or in any other way discriminating against an employee for engaging in various occupational safety and health activities. For example, employers may not discriminate against employees for raising a reasonable concern about infection control related to COVID-19 to the employer, the employer's agent, other employees, a government agency, or to the public, such as through print, online, social, or any other media; or against an employee for voluntarily providing and wearing their own personal protective equipment, such as a respirator, face shield, gloves, or surgical mask.
Additional Guidance for When Employees get Vaccinated. While the Department of Labor’s workplace guidance does not go into great depth regarding the vaccine, it provide two key pieces of information. First, employers should consider providing training or information regarding the benefits and safety of vaccinations. Second, employers should not distinguish between workers who are vaccinated and those that are not. Workers who are vaccinated must continue to follow protective measures, such as wearing a face covering and remaining physically distant, because the DOL believes that at this time there is no evidence that COVID-19 vaccines prevent transmission of the virus from person-to-person. The CDC explains that experts need to understand more about the protection that COVID-19 vaccines provide before deciding to change recommendations on steps everyone should take to slow the spread of the virus that causes COVID-19.
Increasing Ventilation in the Workplace. The importance of increasing ventilation can often be overlooked. Below are some of the strategies to increase ventilation highlighted by the CDC and DOL:

1. 1. Increase ventilation rates when possible.
  2. When weather conditions allow, increase fresh outdoor air by opening windows and doors. Do not open windows and doors if doing so poses a safety or health risk (e.g., risk of falling, triggering asthma symptoms) to occupants in the building.
  3. Use fans to increase the effectiveness of open windows. To safely achieve this, fan placement is important. Avoid placing fans in a way that could potentially cause contaminated air to flow directly from one person over another. One helpful strategy is to use a window fan, placed safely and securely in a window, to exhaust room air to the outdoors. This will help draw fresh air into the room via other open windows and doors without generating strong room air currents.
  4. Reduce or eliminate recirculation, for example by opening minimum outdoor air dampers. In mild weather, this will not affect thermal comfort or humidity. However, this may be difficult to do in cold or hot weather.
  5. Improve central air filtration to the MERV-13 or the highest compatible with the filter rack, and seal edges of the filter to limit bypass.
  6. Check filters to ensure they are within service life and appropriately installed.
  7. Keep systems running longer hours, 24/7 if possible, to enhance air exchanges in the building space.
  8. Use portable high-efficiency particulate air (HEPA) fan/filtration systems to help enhance air cleaning (especially in higher-risk areas such as a nurse's office or areas frequently inhabited by persons with higher likelihood of COVID-19 and/or increased risk of getting COVID-19).

Cal/OSHA Hosts Webinars to Clarify COVID-19 Emergency Temporary Standards

Cal/OSHA issued its Emergency Temporary Standards (ETS) on November 30, 2020. The ETS has important requirements relating to topics such as the components of a compliant COVID-19 Prevention Program (CPP), addressing COVID-19 cases in the workplace, testing obligations, outbreaks in an exposed workplace, and pay and benefits for employees excluded from the workplace as a result of a workplace COVID-19 exposure. All employers should be familiar with the content of the ETS which can be located here. The ETS has also been discussed in prior alerts dated: 1/12, 12/31, 12/23 and 12/11. Stradling can provide assistance if you have yet not adopted your COVID-19 Prevention Program or wish to update it to reflect the most current regulations and guidelines.

More information about the ETS can be gained from logging on to webinars hosted by Cal/OSHA. Stradling attended to first webinar on January 29^th. During that presentation Cal/OSHA emphasized the importance of training, defining an exposed workplace including common areas for purposes of defining an outbreak, and the importance of determining whether employees who test positive had a work-related infection. We have discussed these topics in prior alerts dated: 1/12 and 12/11. We will continue to keep employers of apprised of any changes to Cal/OSHA’s interpretation of its ETS and its application to employers.

The next webinar is scheduled for February 2, and there are a number of future dates as well. Registration is open to anyone. If you want to attend the February 2^nd webinar or any future webinar’s you may register here.

Stradling Has Resources To Help You Stay Compliant

To assist California employers in complying the various COVID-19 requirements in California, Stradling has created COVID-19 protocols which incorporate all the new requirements and clarifications of the ETS and help businesses comply with federal, state, and county requirements. We encourage you to reach out if you are in the process of reopening or you have been conducting business and want to make sure you are in compliance with the applicable industry guidelines.

Please do not hesitate to reach out to us for assistance in dealing with the effects of the COVID-19 pandemic on your company.

Labor and Employment Practice Group

Jeff Dinkin
805 730 6820
jdinkin@stradlinglaw.com

Jared Speier
805 730 6804
jspeier@stradlinglaw.com

Intellectual Property Practice Group

Steven Hanle
949 725 4126
shanle@stradlinglaw.com

Corporate and Securities Practice Group

Ryan Wilkins
949 725 4115
rwilkins@stradlinglaw.com

Public Finance Practice Group

David Casnocha
415 283 2241
dcasnocha@stradlinglaw.com

Brian Forbath
949 725 4193
bforbath@stradlinglaw.com

Litigation Practice Group