Labor, Employment and Employee Benefits Legal Update
COVID-19: OSHA’s Updated Guidance - Face Masks in the Workplace

The U.S. Department of Labor’s Occupational Safety and Health Administration (OSHA) recently updated its guidance regarding wearing face masks in the workplace. 

The guidance includes FAQs related to COVID-19, and discusses a number of issues, including, the following:

  • The guidance explains the differences among different kinds of face coverings:
  • cloth face coverings, which may be commercially produced or improvised (i.e., homemade);
  • surgical masks, which are typically cleared by the FDA as medical devices; and
  • respirators, which must be provided and used in accordance with OSHA’s Respiratory Protection Standard (29 CFR 1910.134).
  • The guidance makes clear that cloth face coverings, which are to be worn in public to contain the wearer’s potentially infectious respiratory droplets, are not considered personal protective equipment (PPE), and that employers are not required to provide them. However, OSHA recommends that employers encourage all workers to wear face masks in the workplace, in accordance with the CDC’s recommendation that everyone wear face masks in public.
  • The guidance makes clear that cloth face coverings are not a substitute for social distancing and that social distancing should be maintained in the workplace even with the use of cloth face coverings.
  • OSHA also suggests following the CDC’s recommendations about washing cloth face coverings. (See

For more information on this topic and the actual FAQs, see

If you have any questions about this or any other workplace safety matters, please contact an attorney within our Labor, Employment and Benefits Group.
United States Supreme Court Issues Historic Decision Protecting LGBT Workers from Employment Discrimination

Earlier this week, in the case of Bostock v. Clayton County, Georgia , the United States Supreme Court issued a historic decision holding that Title VII of the Civil Rights Act of 1964 forbids employment discrimination on the basis of sexual orientation and gender identity. Title VII prohibits employers who employ at least 15 employees from discriminating against employees on the basis of an individual’s race, color, religion, national origin and sex (i.e., gender). However, neither Title VII nor any other federal law explicitly includes sexual orientation or gender identity as protected classes. While the Equal Employment Opportunity Commission (EEOC) and several federal courts previously ruled that Title VII prohibits employment discrimination on the basis of sexual orientation and gender identity, a number of other federal courts ruled that Title VII’s protections do not extend to such employees. In Bostock , the Supreme Court resolved that conflict.
Specifically, Justice Gorsuch, who authored the Court’s decision, explained that, when an employer discriminates against an individual on the basis of sexual orientation or gender identity, such discrimination is inherently based on such individual’s sex (i.e., gender), and, therefore, violates Title VII. As the Court stated, “…homosexuality and transgender status are inextricably bound up with sex. Not because homosexuality or transgender status are related to sex in some vague sense or because discrimination on these bases has some disparate impact on one sex or another, but because to discriminate on these grounds requires an employer to intentionally treat individual employees differently because of their sex.” The Court further explained that the test for proving employment discrimination, which is known as “but-for causation,” does not require that an employee’s sex, sexual orientation, sexual identity, or other protected classification under Title VII be the sole or primary factor that caused an adverse employment action in order to violate Title VII. Rather, “[a]n employer violates Title VII when it intentionally fires an individual employee based in part on sex. It doesn’t matter if other factors besides the plaintiff’s sex contributed to the decision. And it doesn’t matter if the employer treated women as a group the same when compared to men as a group.” While the facts in Bostock (and its companion cases which were decided simultaneously) involved employment terminations, the Court’s ruling applies to any adverse action taken by an employer, including refusal to hire, if based upon sexual orientation or gender identity.
The Massachusetts Fair Employment Practices Act (M.G.L. Chapter 151B) has prohibited employment discrimination on the basis of sexual orientation since 1989. In 2011, the Massachusetts legislature amended Chapter 151B to also expressly prohibit employment discrimination on the basis of an individual’s gender identity. Thus, while Massachusetts workers have had such protections for a number of years, the Supreme Court’s decision in Bostock now extends those protections to workers in all states who are employed by employers with at least 15 employees. Such Massachusetts employers who have facilities and/or employees in other states must now treat all applicants and employees in accordance with the Bostock decision.
It is worth noting that, in Bostock , the Supreme Court did not address other LGBT issues in the workplace, such as whether employers can have bathrooms, locker rooms or dress codes segregated by gender; nor did the decision address whether an employer’s religious affiliation could be used as a basis to avoid compliance with Title VII. Those issues will likely be addressed in future litigation. 
If you have any questions about the Supreme Court’s ruling in Bostock v. Clayton County, Georgia, or any issues regarding employment discrimination, please feel free to contact a member of our Labor, Employment, and Employee Benefits Group.
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