ILMA Compoundings - March 2021 - 26

COUNSEL COMPOUND

They Come in Twos
By Jeff Leiter

I

was thinking about this month's
column when I received two
interesting inquiries related to the
COVID-19 pandemic. The first
question was about the Centers for
Disease Control and Prevention's
(CDC) recent double-mask recommendation and whether employers
should mandate that employees wear a
cloth mask over a surgical mask. The
second question involved how to deal
with employees who have a reaction to
the COVID-19 vaccine. Here is my
take on both inquiries.
The CDC's double-mask recommendation is guidance and is based on
the agency's study that concluded double-masking, or tightening a mask's
fit, can protect wearers by reducing by
about 95% their exposure to infectious, aerosolized particles. The key
takeaway from the new CDC guidelines is that mask fit, when combined
with other measures, such as physical
distancing, avoiding crowds, staying
away from poorly ventilated indoor
spaces, and good hand hygiene, can be
highly effective in reducing the risk of
spreading or contracting COVID-19.
When asked what employers should
do, I always start my analysis with
the Occupational Safety and Health
Administration's (OSHA) " General
Duty " clause, which establishes an
employer's statutory obligation to
provide a workplace free from recognized hazards likely to cause serious
physical harm or death. It is possible
that wearing two face masks might
create safety hazards in the workplace,
while a tighter fit of one mask might
provide the same level of protection.
So, it is important to consider various
factors, including the four that follow,
before asking workers to double-mask.
First, will double-masking obstruct
the employee's peripheral vision?

26

MARCH 2021

| COMPOUNDINGS | ILMA.ORG

Workers' safety glasses could get
steamed, leading to possible injury for
those employees performing safety-sensitive tasks, such as operating forklifts.
Second, could wearing two masks
make it more difficult to breathe?
Some workers, especially those with
underlying respiratory issues, may
have trouble breathing while wearing
only one mask, so adding a second
mask could be problematic.
Third, does wearing a second mask
open employees to hazards and injury
if one of the masks could be caught
in machinery? A safety professional
is usually the best person to address
caught-in hazards, but make sure it is
a consideration.
Fourth, make sure that employees
do not presume that double-masking
means double the protection. The
CDC says that double-masking does
not necessarily mean double protection.
My bottom line is that an employer
needs to evaluate the possible hazards
in its workplace associated with
implementing the CDC double-masking guidance, while at the same time
continuing to follow CDC, OSHA
and other governmental agency
recommendations and mandates on
the proper steps to help reduce the
workplace spread of COVID-19. If
an employer determines to allow
or require double-masking, then its
policy should be enforced across all
employees, but in a manner that does
not discriminate against any workers
based on their protected status, such
as age, disability or religion.
Many employers are encouraging
their employees to get the COVID19 vaccine, but they are overlooking
that some vaccine recipients may
experience mild-to-moderate side
effects (e.g., pain at the injection site,
fatigue, headache and chills) after

being inoculated. In many instances,
the reactions occur after the second
shot. Employers certainly can play a
huge role in educating their workers
that this is a natural occurrence, and
the possible temporary side effects are
greatly outweighed by the benefits
from getting vaccinated.
Employers can ease employees'
apprehension about getting the
COVID-19 vaccine by providing
them with access to accurate information about the different vaccines,
including the possible side effects. In
providing access to such information, consider gathering materials
from the CDC, state or local health
departments or local health care
providers, and then share them with
your employees in advance of their
eligibility to receive the vaccine. Keep
in mind that the Equal Employment
Opportunity Commission (EEOC)
has stated that asking an employee
whether he or she has been vaccinated
is not a disability-related question.
The specific issue I was asked about
is how to handle those employees who
experience side effects after receiving
the COVID-19 vaccine, particularly
where the employer is encouraging
its workers to get vaccinated. The
common-sense and prudent response
is to be careful not to inadvertently
penalize them for getting vaccinated
and then needing time off to recover
from any side effects. One step is to
ensure that employees experiencing
side effects from the vaccine are not
punished by docking their pay, by
forcing them to use up PTO hours
or by taking disciplinary actions for
absences related to the vaccine's side
effects. Importantly, do not forget
that many state and local paid sick
leave laws may mandate PTO or
Continued on page 29


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ILMA Compoundings - March 2021

Table of Contents for the Digital Edition of ILMA Compoundings - March 2021

ILMA Compoundings - March 2021 - Cover1
ILMA Compoundings - March 2021 - Cover2
ILMA Compoundings - March 2021 - 1
ILMA Compoundings - March 2021 - 2
ILMA Compoundings - March 2021 - 3
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ILMA Compoundings - March 2021 - 5
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ILMA Compoundings - March 2021 - 7
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ILMA Compoundings - March 2021 - 12
ILMA Compoundings - March 2021 - 13
ILMA Compoundings - March 2021 - 14
ILMA Compoundings - March 2021 - D1
ILMA Compoundings - March 2021 - D2
ILMA Compoundings - March 2021 - D3
ILMA Compoundings - March 2021 - D4
ILMA Compoundings - March 2021 - D5
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