Retail Workers Without Masks May Be Breaking the Law

If you’ve ventured out into the world lately, you might be noticing a troubling trend — retail workers not wearing masks. 

This practice might make you uncomfortable as a customer, but is it illegal? And what’s required of local businesses as Michigan’s economy reopens anyway?

“If you’re dealing with the public, you’re going to have to wear a mask.” — John Birmingham, employment attorney

These are the questions I had to address after deciding to stop by a quick-oil-change shop, where I noticed that none of the employees were wearing face coverings. When asked why, employees explained that they are “considered an open air business” because of the air flow between open garage doors on either side.

The corporate office of the Michigan chain, which WDET is choosing not to name, confirmed this explanation, saying shops provide face coverings for employees who want them or when customers request workers wear them. But when I asked the employees at the shop to wear masks, they said they were out. They socially distanced from customers, but not each other as they were working on cars.

So what’s a customer to do? Being a journalist, I reached out to local experts for guidance. 

Click on the player above to hear MichMash host Jake Neher untangle mask guidelines for local businesses. 

“I don’t think the fact that there is some open air would create an exception. I think that would still be a situation where you would be required to wear a face covering,” says John Birmingham, an employment attorney with the law firm Foley and Lardner LLP. 

Whitmer Says Masks Are Required

Birmingham says one of the major challenges for businesses is navigating the patchwork of laws and orders that exist and are constantly changing. But there’s one aspect that stands out.

“I would say the most definitive law right now is Gov. [Gretchen] Whitmer’s order,” Birmingham says. 

Under that order, Birmingham says, all of us — not just employees — need to wear face coverings when we’re within six feet of one another.

Employers need to develop a plan which includes face covering and personal protective equipment, and face covering is required if somebody is in a workplace where employees cannot consistently maintain a distance of at least six feet apart. 

Different Rules for Different Industries

There are also different rules for different industries.

“Trust is absolutely critical if you’re trying to restart your business and want people to feel comfortable coming back in.” — Marick Masters, Wayne State University

In retail, if you’re dealing with the public, you’re going to have to wear a mask. If you work in an office, you must wear face coverings in shared spaces such as meeting areas, hallways and restrooms. However, if you’re behind a door isolated in your own office, you don’t need to wear a mask.

The order is even more lenient for people who work outdoors. It says you have to wear face coverings as appropriate — leaving a lot up to the business’ and employee’s discretion. 

There are also county orders as well.

“If you work in Oakland County and you deal with customers or you deal with face-to-face gatherings, like grocery stores, you have to wear masks,” Birmingham says.

CDC Guidelines

There are a lot of guidelines out there as well. And because they are not legally binding, the ways in which businesses follow them varies greatly.

Some of the most notable guidelines for businesses come from the Centers for Disease Control and Prevention.

The CDC guidelines include the following:

• Wear a cloth face covering at work if the hazard assessment has determined that they do not require personal protective equipment, such as a respirator or medical face mask for protection.
• Wear a cloth face covering as a measure to contain the wearer’s respiratory droplets and help protect their co-workers and members of the general public.
• Cloth face coverings are not considered PPE. They may prevent workers, including those who don’t know they have the virus, from spreading it to others but may not protect the wearers from exposure to the virus that causes COVID-19.
• Remind employees and customers that CDC recommends wearing cloth face coverings in public settings where other social distancing measures are difficult to maintain, especially in areas of significant community-based transmission.

Wearing a cloth face covering, however, does not replace the need to practice social distancing.

Best Practice for Employees, Employers

Beyond what’s written in the law and the guidance, there’s also what’s best for business.

“People really have to exercise a good deal of common sense, stay informed, and make things available to their employees, particularly if they asked to be protected and to wear a face mask,” says Marick Masters, a business professor and interim chair of the Department of Finance at Wayne State University’s Mike Ilitch School of Business. 

“If you have the potential to interact with a customer, you are probably best inclined to wear a face mask.” — Marick Masters, Wayne State University

“I think that trust is absolutely critical, particularly if you’re trying to restart your business and want people to feel comfortable coming back in,” Masters says. “There are going to be people that are going to be hesitant to come back in if word-of-mouth comes out that people don’t have face masks or they seem casual about it.”

“I think that you are better off from both a legal standpoint and a trust standpoint, and going the extra mile and trying to reassure people, that you’re doing everything humanly possible to protect the safety of your employees and your customers.” 

But There Are Exceptions

Of course, companies could run into a situation where masks are not encouraged. 

“You could have a situation where a mask or a face covering is incompatible with somebody’s disability,” Birmingham says.

“For example, somebody had asthma and wearing a mask, which is incompatible with their asthma or exacerbated it, then you’d have to talk to them and see if there’s gonna be a different kind of face covering they could wear, maybe a leave of absence as an accommodation.”