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What Employers Should Know About Masks, the ADA and Repopulating the Post-Pandemic Workplace

It seems that we have made it through the worst of times, with the economy reopening, masks coming off and people traveling out and about once again. However, for employers reopening the workplace, new concerns continually arise. Among these: how to provide employees in the workplace with a working environment which is safe, nondiscriminatory and operated within the guidelines of the law.

Some questions which immediately arise include whether employees must wear masks in the workplace where not all are vaccinated, or when an outbreak of COVID-19 occurs, or when employees are in regular contact with the general public, many of whom are not yet vaccinated.

Modified guidelines for California employers about the wearing of masks were issued by Cal OSHA on June 17, 2021, changing aspects of the Emergency Temporary Standards, which were given immediate effect by an order signed by Governor Newsom the same day. Those guidelines provide that employees who are vaccinated need not wear masks indoors or outdoors undermost circumstances, while unvaccinated employees must continue to wear masks indoors in the workplace. All employees are required to wear face masks indoors and outdoors during an outbreak of COVID-19 in the workplace. Employers are required to document the vaccination status of employees but need not ask for proof of vaccination. Employees are permitted to attest to their vaccination status in writing to the employer. Employers are also required by the modified Cal OSHA Standards to provide unvaccinated employees with N-95 respirators for use in the workplace on request. More detailed information on these regulatory changes may be found at

The guidelines regarding masks in the workplace are but one example of the ever-changing landscape for employers in responding to the pandemic. Employers must keep up with the latest information and guidance in order to remain in compliance with the basic requirements of providing a safe workplace, free of discrimination in decisions regarding employees. It bears remembering that the pre-pandemic laws and regulations regarding workplace discrimination remain in place and now have new and different dimensions to take into account. This includes the Americans with Disabilities Act and other Equal Employment Opportunity statutes under federal law, such as the Immigration and Nationality Act, as well as corresponding state antidiscrimination laws.

The ADA covers private employers of 15 or more employees. For those covered employers, the ADA protects employees from discrimination based upon disabilities or perceived disabilities which restrict a major life activity. Major life activities include breathing, speaking, hearing and so on. One of these major life activities is that of working, which is quite inclusive. During the pandemic period, the ability for one to work and the perceptions which affected or limited one’s availability to report to a workplace, had to be carefully navigated by employers.

Thus, when workers could not or would not report because of a pre-existing medical condition that may have made them more vulnerable to the Corona virus, employers had to engage in balancing the need for employees to physically be present at work against the ability to do that work remotely. Likewise, bringing employees back to the workplace requires consideration of an employee’s pre-existing conditions which may prohibit them from immediately reporting back to a workplace that is being repopulated with unvaccinated employees.

Employers covered by the ADA must still go through a process of determining whether reasonable accommodations are available which allow employees to continue performing their essential job functions, while also taking into consideration their inability to physically be present in the workplace. Obviously, this analysis greatly depends on a number of factors, including the essential functions of each job, the need for personal contact either with fellow employees or customers, or both, and the expected length of time that the employee would be unavailable to report to the workplace.

The Equal Employment Opportunity Commission, which is charged with enforcing provisions of the ADA, has provided a list of FAQ’s to assist employers navigating through this difficult time. It may be found at Perhaps even more important, it is time to get to know a good, reputable employment law attorney who can help pilot the ship through these treacherous waters.

Donald W. Hitzeman is a shareholder with Reid & Hellyer, A Professional Corporation, and an experienced Business Law Litigator and Transactional Attorney. He has over 38 years of legal experience, including advising business owners and operators on employee issues, as well as general business litigation, transactional matters and estate planning. He may be reached at his Murrieta office at (951)695-8700.