In-N-Out and Other California Workplaces Can't Prevent Employees From Wearing Masks, Regulators Say

For at least another year and a half, California employers won’t be able to follow In-N-Out’s lead in banning workers from wearing masks on the job.

The state’s COVID-19 workplace rules protecting workers’ rights to decide for themselves whether to wear face coverings are locked in at least until February 2025 and could be extended.

Those regulations prevented the iconic Irvine-based burger chain from applying its new policy (PDF) prohibiting workers from wearing face masks in its home state, where it operates about 70% of its restaurants.

Instead, In-N-Out’s mask ban will apply to workers at its restaurants in Arizona, Colorado, Nevada, Texas and Utah. It has a total of 116 locations (PDF) in those states.

In a memo, the company said it wants to “emphasize the importance of customer service. And the ability to show our Associates’ smiles and other facial features.”

It is allowing employees to wear masks if they present a medical note that “clearly states the reason for the exemption.”

In-N-Out released a different masking policy (PDF) for employees in California and in Oregon that leaves the choice to mask up to each individual worker. That approach complies with California and Oregon standards that provide continuous protections to employees.

In a way, the split is a reminder of California’s more cautious response to the COVID-19 pandemic. The Democratic state was the first to order its residents to shelter in place and shut down non-essential activity. Throughout the pandemic, state health officials have updated guidelines and rules to adapt to evolving transmission patterns.

In-N-Out went along with those rules during the pandemic, although the company contested local indoor vaccine mandates in the fall of 2021. Its refusal to check customers’ vaccination records led to temporary shutdowns of restaurants in San Francisco and in Pleasant Hill of Contra Costa County, according to press reports.

Cal/OSHA, the agency charged with ensuring occupational safety in California, earlier this year updated its COVID-19 requirements. Among them: “Employers must allow employees to wear face coverings if they voluntarily choose to do so, unless it would create a safety hazard.”

California employers can require masks

California employers can go a step further and require workers to wear a mask, as long as they also provide flexibility for someone who can’t wear one due to medical reasons or a disability.

The state’s pandemic-related regulations for employers have gradually eased, but employers are still required to take several steps in the interest of protecting workers, according to Cal/OSHA’s COVID-19 prevention regulations.

These include:

• Notifying employees of COVID-19 cases in the workplace.
• Providing face coverings and free tests to employees during workplace outbreaks, which is defined as at least three cases during a seven-day period.
• Improving indoor ventilation and air filtration to prevent transmission.

California labor organizations plan to continue advocating for public health rules that protect fast-food workers.

Ingrid Vilorio, a Castro Valley Jack In the Box worker and SEIU member, said fast-food employees often lacked basic protections during the pandemic.

“That’s why workers like me went on strike and even testified during Cal/OSHA meetings on the need for emergency safety standards that would keep our colleagues, customers and families safe,” she said.

“Keeping the right to mask is more about our freedom and power to make decisions that will keep us safe at work,” Vilorio added.

Why fast-food workers might want masks

Cal/OSHA enforces its rules with inspections following complaints or accidents, the agency said in an email. It also conducts scheduled inspections.

Alicia Riley, an assistant professor of sociology at UC Santa Cruz who conducted health equity research during the pandemic, said the In-N-Out memo to employees struck her as narrow.

“It assumes a lot about why someone would want to wear a mask. It doesn’t consider the situation we know many workers, especially fast-food workers, are in, which is that they’re not living alone,” Riley said. “They may not be at high risk of serious illness, but they may live with someone who is.”

Earlier this month, the California Supreme Court sided with an employer in a case in which a Bay Area woman sued her husband’s employer after she became severely ill when he caught COVID on the job and brought it home. The court ruled she could not claim workers’ compensation.

Riley said In-N-Out’s mask ban highlights workplace inequities the pandemic exposed. For example, cooks were among the 25 occupations with the most excess deaths in 2020, Riley’s research has shown.

New COVID outbreaks

COVID-19 cases and hospitalizations are down from three years ago, but recent outbreaks show some risk remains.

Just last week, the Los Angeles County public health department reported an uptick in COVID-19 cases and in virus concentration in wastewater following the July 4th weekend. The department said it also is seeing new outbreaks in nursing homes, where residents are highly susceptible to illness. In the span of two weeks, the department said it had opened 23 outbreak investigations.

Because the virus will continue to be around, public health experts say workplace rules, such as allowing workers to mask if they choose, make sense.

“When we think of a broader public health perspective, measures that help us reduce transmission of any disease that are minimally impactful on other individuals are certainly things we should be interested in maintaining,” said Shira Shafir, an epidemiology professor at UCLA.

“Being able to maintain a workforce, being able to minimize the risk of an outbreak occurring at a facility, these are things that are within the best interest of the business as well as in the best interest of the public,” Shafir said.

KQED’s Natalia Navarro contributed to this story.

Supported by the California Health Care Foundation (CHCF), which works to ensure that people have access to the care they need, when they need it, at a price they can afford. Visit www.chcf.org to learn more.