Legally Speaking: City of Dayton Orders Face Masks to be Used

Submitted by Bob Dunlevey and Nadia A. Lampton, Taft/Law

Effective Friday, July 3 at 8:00 a.m., individuals within the City of Dayton must wear face coverings or face a civil penalty of $85 – few exceptions exist. Employers doing business in Dayton will have to require their employees to wear masks under most circumstances. However, when an employee is in his or her “work office,” “conference room” or “other space not intended to be used by the general public,” or inside personal or commercial vehicles, or in settings where it is not “feasible or practicable” to wear coverings, face masks need not be worn. In addition, if an employee has a medical condition which precludes the wearing of such a mask, the employer cannot insist upon use but may request verification of the medical condition. So, some latitude exists for employers – especially those not having employees coming into contact with the general public. It appears, however, that the “not feasible or practicable” exception is somewhat narrow and employers should be careful in attempting to use it.

Employers should note, however, that the Ohio Department of Health’s Director’s Order concerning updated and revised business guidance and social distancing (Here) provides greater exceptions and states that businesses must require all employees to wear facial coverings, except when the use of facial coverings:

1. are prohibited in the work setting by law or regulation;

2. are in violation of documented industry standards;

3. are not advisable for health reasons;

4. are in violation of the business’s documented safety policies;

5. not needed because the employee works alone in an assigned work area; or

6. there is a functional (practical) reason for an employee not to wear a facial covering in the workplace – i.e., safety, breathing conditions, increased risk of heat stress, etc.

Under Ohio’s Order, businesses must provide written justification, upon request, explaining why an employee is not required to wear a facial covering. Many employers attempting to utilize one of these exceptions are now preparing the written justification for such in a preemptive fashion so it will be available if the Health Department inquires. Beware that Mayor Whaley has said that law enforcement will investigate each complaint and potentially pursue the imposition of fines.

Take the time to read, understand and implement the provisions of the City of Dayton Ordinance (Here) and the Ohio Department of Health Orders related to facial coverings. If you desire assistance in determining whether your workforce is covered or you wish to have written justifications for exemption prepared, or if you or your business receive a fine related to the City of Dayton’s new ordinance, contact experienced labor and employment law attorneys Bob Dunlevey at rdunlevey@taftlaw.com (937) 641-1743 or Nadia A. Lampton at nlampton@taftlaw.com (937) 641-2055.