To Wear, or Not to Wear: Managers’ Compliance With Face-Covering Mandates

Most managers are committed to the success of their organizations, employees, customers, and communities. They work hard to provide safe and healthful workplaces. They give their best efforts to manage in good-faith compliance with the myriad of federal, state, and local laws applicable to their organizations. They are generally mission critical to protecting their organizations against liability exposure. Even so, some organizations have faced significant manager resistance to the use of COVID-19-related face-coverings in the workplace. Why is that, and what can be done about it?

Understanding the Mandates

As employers, we are dealing with the human condition, which is inherently good but which suffers from certain frailties from time to time—including while in the workplace. Some manager resistance to face-coverings is likely attributable to the multiple, divergent, and conflicting opinions of medical and health experts concerning the efficacy of their use in protecting against the spread of COVID-19. Other resistance may be connected to legal and political debates concerning the constitutionality of face-covering mandates. Still other resistance may be related to discomfort or embarrassment.

Ultimately, managers should feel comfortable wearing face-coverings in the workplace when required by applicable law or employer policy, without feeling like they are compromising their personal integrity, because it’s simply part of their overall duties to help their organizations and others be successful.

On July 30, Wisconsin Governor Tony Evers issued an emergency Executive Order relating to preventing the spread of COVID-19 by requiring face-coverings in certain situations. The order expired on September 28, and a new order was issued on September 22 that expires on November 21. Among other things, the order requires every individual, age five and older, to wear a face-covering while indoors or in an enclosed space other than at a private residence, when another person who isn’t a member of the individual household or living unit is present in the same room or enclosed space.

There are limited exceptions, which won’t be addressed here. The order makes compliance an individual obligation subject to a civil forfeiture of not more than $200 per violation. Other states, counties, municipalities, and businesses have adopted similar face-covering requirements. Suffice it to say, this has resulted in legal, political, and management/labor firestorms across the country.

Working With Managers Who Are Opposed to the Mandates

Managers with strong personal feelings against face-covering mandates must understand they don’t compromise their personal integrity by wearing a face-covering in the workplace. To the contrary, by setting aside their personal feelings and wearing them, they actually exhibit strong leadership qualities by modeling positive behavior consistent with their longstanding commitment to help their organizations and others be successful.

From a legal perspective, owners, directors, officers, and some key managers may owe their organizations certain fiduciary duties including the duties of care and loyalty. The nature and extent of such duties depend, in large part, on state law. Some state corporate codes make the individuals personally liable for willful misconduct. Accordingly, compliance with face-covering mandates or policies may be part of managers’ overall duties and responsibilities to their organizations and may help reduce the risk of personal liability.

When a manager fails to comply with a face-covering mandate or policy, such conduct may violate existing emergency health orders and the employer’s concomitant expectation that all employees and business leaders will comply with applicable laws while at work or engaged in work activity away from the work premises. This is no different from a manager’s duty to comply with the rules of the road while operating a vehicle for work purposes. Additionally, a manager’s failure to comply with a mask mandate or policy may:

• Expose coworkers, their families, and possibly others to an increased risk of COVID-19;
• Expose the manager and business to civil liability to the government, employees, employees’ family members, and the general public at a time when the employer has directed the manager and all of its other employees to comply with the mandate or policy while at work;
• Constitute insubordination with respect to a lawful directive of the employer;
• Unfairly expose other employees who follow the manager’s negative lead in not wearing a face-covering to disciplinary action up to and including discharge at a time when the employer is asking the manager to model the employer’s standards of conduct and positive behavior while at work; and
• Undermine the employer’s efforts to maintain a positive and harmonious relationship among its owners, managers, and nonsupervisory employees because it gives the appearance of an “us vs. them” approach where the manager is acting “above the law,” which is not the message that the employer wants to convey.

Despite the best efforts of legislators, rule makers, and enforcement agencies, the workplace is a microcosm of society with all the stresses, strains, and challenges we see play themselves out on a daily basis in our outside world. There’s enough negativity outside the four walls of every business such that leaders should seek to avoid conflict from within. For leaders who are charged with setting and modeling the standard, this means being the standard all the time.

Bottom Line

When you are faced with a manager’s resistance to a face-covering requirement, encourage her to continue to lead with integrity and excellence in everything she does. Managers who have the most long-term, sustained success are those who have a strong commitment to a systematic, process-oriented approach that leads to continuity, predictability, and repeatability. As the saying goes, control the controllables. Challenge her to foster a culture of servant leadership where all employees are committed to helping each other develop and be successful.

Leadership is personal, not positional. It doesn’t matter what one’s station is within an organization—everyone has the ability to affect the organization’s culture and success. Remind the manager that with one word or action, one can lift up or tear down—so lift up! When an individual engages in positive conduct for the benefit of others, other people of integrity will follow suit, and the organization, manager, and others will benefit from that kind of positive momentum at the institutional and individual levels. Remember, effort never had a bad day!

Troy Thompson is a Partner at Axley Brynelson, LLP. He is also an Editor for the Wisconsin Employment Law Letter and can be reached at tthompson@axley.com. Don P. Gallo is a Partner at Axley and co-chairs their environmental practice group. He can be reached at dgallo@axley.com.

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