ASE has turned its Coronavirus resourcing toward returning to work. In the coming days and weeks, ASE will be putting out resources and webinars to help employers prepare for their restart/re-opening. Much of this will be about safety. One safety recommendation is face masking.

The Occupational Safety and Health Administration (OSHA) guidelines are recommending to not only implement social distancing in the workplace, but to also require the use of face masks to further prevent the spread of the Coronavirus. Many, if not most, employers will be supplying face masks for employees. But some employees will undoubtedly want to bring their own masking and as experience has shown with workplace dress codes, employers may wish to prepare for some pretty funky masking that may push the limits of good taste or worse.

Masking can turn fear into funny, and that will be a positive in our current work environment.  

However, what about masking messages and images that may intimidate, harass, or could be seen as threatening, sexist, or even racist?

What are employer rights if an employee is wearing a mask that crosses the often hard to see line between acceptable and bad taste?  Or worse…just flat out “wrong”. It will happen, trust us, and Mr. or Ms. Employer you will be expected to deal with it.  

What are employer rights? Just as with dress, employers can control what is allowed in their place of employment. It is recommended as part of worker recall that employees be reminded (gently) that inappropriate messaging on masks, as with other clothing will not be tolerated, and it will be addressed. 

All employers should keep in mind two laws.

OSHA – First, as mentioned above, employers are obligated to keep employees safe while at work. This may compel requiring the wearing of facemasks to protect other workers, which employers are legally allowed to do.

NLRA – The National Labor Relations Act (NLRA) protects employees engaged in concerted activity. Concerted activity is defined as activity that can be shown to benefit fellow workers’ terms and conditions of employment.  It may be protected and legal to do even if on private employer property.  So, if employee messaging on masks is supporting a safety program or supporting an organizing campaign it could be protected.

The National Labor Relations Board (NLRB) has generally supported the rights of employees to wear union insignia unless it interferes with the employer’s ability to maintain discipline and efficiency – a tough standard. Courts as well as the NLRB have ruled employers must show some “special circumstance” that necessitates the banning. This special circumstance has been found where:

• The insignia can be interpreted in some obscene manner

• Where a protruding pin might damage products on which the employee is working

• If the employer limits wearing to employee clothing and not shop coats owned by the employer

•  If the employer can show the nature of the employee’s duties, reasonableness of the request to remove the insignia, the potential for conflict in the public eye, or the possible reprisals against employees have justified the request to remove insignia

Additional ASE Resources
Webinar: Back-to-Work with COVID-19 – A Leadership Process and Checklist: This members-only webinar will run on Thursday April 23, 2020 from 11:00 a.m. - 12:00 p.m.  This webinar provides an overview of a defined ‘people first’ process for bringing people back to work and resuming operation of your organization.  The process is flexible in that it can be applied to any industry and covers considerations for small to large organizations.  Register here.

COVID-19 FAQs for Employers - This page is updated regularly with new Frequently Asked Questions.

COVID-19 Employer Resources - This page is updated regularly with Coronavirus stats and legislative updates.

Source: CCH HR Answers Now Can Employees Wear Union Emblems?