Governor Sununu’s Emergency Order #40 (the “Order’) provides guidance on whether a cloth covering or face mask (“mask”) is required in all New Hampshire workplaces and under what conditions, if any, an employer may allow an employee to work without a mask or face covering while at work. The Order was issued on May 1, 2020 and remains in effect until May 31, 2020. It applies to all businesses and organizations deemed “essential” and that remained open during the Governor’s “Stay at Home” orders, and also to those businesses and organizations that are reopening all, or a portion, of their operations.
In general, the Order provides that all employees should wear a cloth face covering at work when they are in potential close contact with others and social distancing is not possible. For some businesses, where there is a single desk in an office or desks and work stations are configured far apart, it may be acceptable for the employee not to wear a mask at all times. However, social distancing protocols should remain in place so that no one encroaches close to the employee’s desk or work station when the employee is not wearing a mask. Businesses may also require employees to wear masks and to engage in social distancing when entering the workplace and when in common areas such as, kitchens, supply rooms, lunch rooms, hallways and bathrooms.
The following describes the rules concerning face coverings in New Hampshire workplaces as set forth in the Order.
The Employer Responsibility section of the Universal Guidelines set out in Exhibit B to the Order states that “All employees should…wear a cloth face covering while at work and in potential close contact with others.” The Employee Section of those Guidelines provides as follows:
While at work and in public, employees should wear a cloth face covering to help protect against the spread of the virus. Employees should review the CDC’s guidance on use of cloth face coverings. Medical-grade masks should be reserved for healthcare workers or first responders.
Employers must reduce the risk to employees in the workplace by supporting the use of cloth face coverings in areas where social distancing is difficult to maintain. In every business, the person who screens each employee every day for symptoms and their temperature must also wear a cloth face covering/mask. Although the Order does not require it, it would be wise to have the person doing the screening also wear gloves, a face shield and a full protective garment.
In setting out general rules about the use of masks, the Order states:
- people (including staff and clients or customers) wearing face coverings must not touch their eyes, nose, mouth, or face, or adjust their mask without first sanitizing hands;
- After touching face or adjusting mask, hands must be sanitized;
- In some industries, employees must be provided with training on masks based on CDC guidance for Use of Cloth Face Covering and should review the CDC’s guidance on use of cloth face coverings; and
- surgical facemasks can be considered in place of a cloth face covering if available; however, higher-level respiratory masks (e.g., N95 masks) are NOT appropriate, and should be reserved for healthcare workers or first
- Masks worn by employees should be kept clean in accordance with CDC
The CDC has recommendations regarding the use of cloth face coverings. In its Recommendations for Cloth Face Covers, the CDC notes that “the virus can spread between people interacting in close proximity – for example, speaking, coughing, or sneezing – even if those people are not exhibiting symptoms.” As such, the CDC recommends maintaining six-foot social distancing. It also advises “the use of simple cloth face coverings to slow the spread of the virus and help people who may have the virus and do not know it from transmitting it to others.” The cloth face coverings recommended are not surgical masks or N-95 respirators. The CDC also has specific guidance on How to Wear a Cloth Face Covering. Cloth face coverings should:
- Fit snugly but comfortably against the side of the face;
- Be secured with ties or ear loops;
- Include multiple layers of fabric;
- Allow for breathing without restriction; and
- Be able to be laundered and machine dried without damage or change to shape.
The Order also provides information about the use of masks that are more specific to certain industries. For instance:
…entering the facility.
- In Hospitals (for elective procedures), the Order states that masks should be employed for all persons entering the facility according to state and national
…when around others in settings where social distancing may be difficult.
- For Manufacturing businesses, “Employees should wear cloth face coverings over their nose and mouth when at work and around others in settings where social distancing may be difficult.”
…in public locations or shared staff areas.
…even if other individuals are not immediately present.
- For Retail businesses, (a) all staff must wear cloth face coverings at all times when in the retail facility and in public locations or shared staff areas (g., break rooms), even if other individuals are not immediately present. Customers should wear cloth face coverings at all times when inside the store. Signage and staff should request this before customers enter the store. These retail establishments must assign dedicated staff (i.e., a safety officer) to monitor social distancing and compliance with protective actions, and to prompt customers and other staff about the importance of social distancing, hand hygiene, and use of cloth face coverings.
… outdoor food or beer cart employees must wear cloth face covering.
- At Golf Courses, all staff must wear masks at all times when in the facility and in public locations or shared staff areas (g., break rooms), even if other individuals are not immediately present. Outdoor beer/food carts may operate, but employees must wear cloth face coverings, and properly clean and disinfect hard surfaces between sales.
…. clients must wear masks in barbershops and salons.
…staff must wear cloth face covering even when alone in client service areas.
- At Cosmetology places of businesses including (Barbershops and Salons), such facilities may open on May 11, 2020, but must operate in accordance with certain guidelines. As it relates to masks, it states that all clients must wear at a minimum a cloth face covering that covers the nose and mouth at all times when within the salon or barbershop, and that all staff must wear at a minimum cloth face covering that covers the nose and mouth at all times when within the salon, even when alone in client service areas (e.g., cleaning and disinfecting after services). Stylists and customers must wear either cloth face coverings or surgical procedure masks as discussed above.
…customers in food service should wear cloth face masks when social
distancing is difficult.
- In the Food Services Industry – Phase 1: Take Out, Curbside, Delivery and Outdoor Dining, the Order states that customers should also be asked to wear masks when in a food service facility where social distancing is difficult, for example, when waiting in line for pick-up or Customers should be asked to bring and wear a mask when entering and exiting a facility to protect other patrons and employees during the seating and exiting process, or when getting up to use the restroom. Masks are not required while a customer is seated and dining outdoors.
…level of PPE depends on job function.
- For Campgrounds (public and private), staff must be issued, depending upon their function, latex/non-latex gloves, eye protection (goggles or face shields), and masks or other appropriate protective Cashiers and customer services representatives must wear, at a minimum, a cloth face covering. When checking campers in, campgrounds must provide information to all campers on the need for social distancing, frequent hand hygiene/washing, cloth face covering use when in public places, and advise customers of limited activities and facilities.
…visitors must wear cloth face covering.
…State Parks must provide signage about the requirement for cloth face covering.
- At State Parks, staff must be issued, depending upon their function, latex/non-latex gloves, eye protection (goggles or face shields), and masks or other appropriate protective Cashiers and customer services representatives must wear also wear masks, at a minimum. Parks must post signage and messaging about COVID-19 and need for social distancing, frequent hand hygiene/washing, and masks when in public places. Visitors must wear masks to protect others when in locations where other consumers might be present (e.g., bathroom facilities).
- For Drive-In Movie Theaters, employees must wear a mask, especially where other social distancing measures are difficult to maintain as recommended by the Cashiers and customer services representatives must wear a cloth face covering.
Other websites provide information that may be of interest to employers, employees or members of the public. The Resource Center for New Hampshire Homeland Security & Emergency Management provides information to employers (including medical providers) in need of masks and lists locations throughout the State where masks can be obtained without cost. Go to: https://prd.blogs.nh.gov/dos/hsem/?page_id=8451 The New Hampshire Division of Public Health Services, Bureau of Infectious Disease Control also has helpful guidance on “Using Cloth Face Coverings to Help Slow the Spread of COVID-19.” https://www.dhhs.nh.gov/dphs/cdcs/covid19/covid-mask-guidance.pdf.
In conclusion, Governor Sununu’s Emergency Order #40 contains important information for employers to keep in mind when updating their policies and practices in light of COVID-19. Because circumstances surrounding COVID-19 change rapidly, employers should continue to monitor additional updates released by state and federal authorities in order to ensure that they are compliant with the latest guidelines and regulations.
 The CDC also provides helpful Sew and No Sew Instructions for making a cloth face covering as part of its How to Wear a Cloth Face Covering information.