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Employers caught in mask mandate tug of war

U.S. workplace safety law vs AZ mask mandate ban
Posted at 7:51 PM, Aug 04, 2021
and last updated 2021-08-04 22:51:49-04

TUCSON, Ariz. (KGUN) — The ban on mask mandates creates a real dilemma for employers. They risk having to choose between breaking Arizona law or Federal law.

Bosses have an obligation to keep workers safe. Just ask an employer who’s tangled with OSHA. But what do you do when you think a mask is part of protecting your workers, but the state says you can’t require masks?

In the tug of war over masks employers are caught in the middle.

School district leaders have to balance parents, students and teachers who feel masking rules will protect them with parents, students and teachers who feel masks impose on their freedom and are harmful somehow.

Employment law attorney Ivelisse Bonilla says the state law banning mask mandates collides with long standing Federal law that says bosses must maintain a safe workplace.

“I think the district has a few arguments that could say that that (state) law is unconstitutional. There may be a preemption, for example, say, the Federal law requires me to protect my employees, and your state law is preempted by Federal law.“

The state law has language that says it overrides any other law but the Constitution’s Supremacy Clause says Federal law overrides state law.

Pima County Supervisor Matt Heinz is a doctor and a former state lawmaker. He argues other sections of state law give the County’s health director complete authority to require protections like mask mandates.

But Governor Ducey’s office says the law against mask mandates is clear and the Governor expects it to be obeyed.

There’s the other debate over whether masks really do improve safety. Bonilla says from a legal standpoint the best authority for employers is still the CDC and it is recommending masks indoors.

Bonilla says the state law banning mask mandates may offer some liability protection if a school district does not require masks, someone catches COVID, and sues.

“I think it will be hard for someone to go against the district with an argument of you're not protecting me if the Governor and the Legislature enacted a statute.”

But ultimately she expects the conflicting laws to lead to lawsuits that ask the courts to settle the argument.