April 24, 2024

Burger’s New Covering Policy Puts Their Employees’ Health at Risk

In-N-Out Burger has a new store policy that prohibits employees from wearing masks unless they have a doctor’s approval note. They confirmed this news in a phone call.

The policy was introduced to “emphasize the the importance of customer service and the ability to show our Associates a smile and other facial features.” They go on to say that this will help “balance two things that In-N-Out is known for – excellent customer service and unmatched standards of health, safety and quality.”

Those employees who refuse will be disciplined “up to and including termination of employment.”

It may be “unmatchable” to risk the health of their employees but not in the way they believe. And if their only concern is to see their employees smile, there are masks with transparent windows over the mouth (eg. Bright Mask).

According to this memo to employees, first published by Dr. Lucky Tran on Twitter, the new policy begins August 14 in Arizona, Colorado, Nevada, Texas and Utah.

Tran subsequently provided a link to the memo which was distributed to In-N-Out employees via MailChimp, which also links to other announcements from the company.

The policy does not apply in California or Oregon, where employers are not allowed to prohibit employee coverage. However, the state-specific policy for In-N-Out requires their employees to “wear a company-provided N95 mask. N95 masks provide the highest level of protection against COVID-19 and other viruses and are recommended by OSHA for other respiratory protection.” Different masks may be approved with a valid medical note. This suggests that In-N-Out recognizes the value of N95, even though they want to prevent employees from covering it.

Maybe In-N-Out would like to recognize that 60% of people in the US have underlying conditions which put them at increased risk for severe Covid. The CDC lists many of these on its site, including age, race, obesity, and current or previous smoking and mood disorder. Surprisingly they do not list autoimmune diseases.

Without disclosing a medical diagnosis, In-N-Out’s new policy mandates, “The medical note should clearly state the reason for the exemption and the expected length of time.” How can this be done without violating the employee’s privacy?

A doctor’s note is also a burden in terms of time and money. Many people do not have a primary care doctor or a doctor readily available. And claiming a disability could be considered a violation of the ADA (Americans with Disabilities Act), depending on how one relates to coverage as a request for accommodation.

The Slippery Slope?

In California, a Bay Area woodworking employee caught Covid on the job. His wife got severe covid, requiring ventilatory support. The California Supreme Court recently ruled that the employee cannot claim workers’ compensation for “bringing home” the wife’s infection. “Since there is a moral interest in doing so, that interest outweighs the potential flight of litigation,” the court ruled.

Writer Jessica Wildfire has a pointed comment on Burger In-N-Out’s new policy. She notes the irony “In the past, In-n-Out has made a point of refusing to enforce vaccine mandates, saying they won’t police their workers or force them to do anything against their will.” More companies may adopt similar policies. Wildfire concluded, “Fast food workers don’t need to laugh at anyone.”

In New York, Mayor Eric Adams told store owners, “Do not allow people to enter the store without removing their face mask.” He added that customers could return them there. Some have opposed this, saying that requiring mask removal violates the federal Americans with Disabilities Act and New York State Human Rights Law.

Employee Protections Vary by State

California employees have more protections than the other western states listed above. California OSHA regulations state, “No employer shall prohibit any employee from wearing a face covering, including a respirator, unless it would create a safety hazard.”

In its update on May 11, 2023, the CDC says,People may choose to mask at any time.They add, “Strategic prevention strategies—like staying up-to-date on vaccines and wearing masks—can help prevent serious illness and reduce the potential strain on the health care system. Wear a mask with the best fit, protection and comfort for you.”

Just this week, HHS tweeted, “The more often you get COVID, the higher your risk of complications.”

It’s not just In-N-Out that’s pushing the urgency of normalizing behavior, despite ongoing Covid illnesses and deaths across the country. I have had repeated complaints from UPMC staff over the years that they are not allowed to wear N95 masks or, soon, double masks. They are only allowed to wear flimsy surgical masks with ear loops provided. Similarly, patients must ask the staff caring for them to wear a mask. I asked the administration, “What if they are old, or confused, or afraid of authority? How do they know they can ask a question without putting their care at risk?” The only answer was that patients should check signage.

And it’s not just the Covid that people would want to protect themselves from. In recent weeks, much of the country has been under air quality alerts from the large wildfires in Canada.

There seems to be no good argument that In-N-Out Burger would force employees to take obvious health risks. This case will likely go to litigation. Will the courts favor business interests or employee welfare and safety?

Burger In-N-Out did not immediately respond to a request for comment, but in a call to its customer service line this time, (800) 786-1000they confirmed the accuracy of the report.

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