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By: Jacob McClendon
The impact of the COVID-19 pandemic continues to be felt by businesses across the country. The new, highly transmissible Delta variant has heightened the concerns of public health authorities and threatens to disrupt a long-awaited return to normal. On July 27, 2021, the Atlanta-based CDC recommended that individuals wear a mask indoors in public if they are in an area of “substantial or high transmission.” This guidance applies to persons who have received a COVID-19 vaccine. Nearly two-thirds of counties in the United States meet the CDC’s criteria for “substantial or high transmission,” including DeKalb and Fulton Counties.
The day after the CDC’s recommendation was released, Mayor Keisha Lance-Bottoms issued an Executive Order requiring mask use in all public places while indoors in the City of Atlanta, citing the recent CDC guidance. The Executive Order states that it extends to persons in private businesses. The question now becomes: must employers require their employees to wear face masks while at work?
The answer appears to be in the negative. At its core, the Executive Order acts as an individual mask mandate. The Executive Order requires “all persons in an entity or public place” to wear masks while indoors. “Entity” is defined broadly as any private business, establishment, corporation, or non-profit corporation. By its own terms, the violations of the Executive Order “shall not be enforced against any entity” or any officer or director “solely because of the failure of their customers to comply with this Order.” This language clearly targets individuals rather than employers. The Executive Order also contrasts with other states like Colorado that have explicitly required employers to comply with mask mandates.
In addition, the Executive Order is enforceable only against persons and individuals through an initial warning and civil fines. Essentially, the Executive Order does not direct its mask mandate to employers and does not include any mechanism to enforce its mandate against employers. Thus, we believe a reasonable interpretation of the Order is that employers in the City of Atlanta are not required to ensure their employees are wearing masks while at work.
However, employers, especially those in industries where in-person contact is unavoidable, should continue to recommend that their employees and customers wear a mask in compliance with the Executive Order. This ensures individual employees and customers avoid any potential for police attention or a civil fine and that the workplace remains as safe and healthy as possible.