In-N-Out Burger’s New Masking Policy Threatens Their Employees’ Health

In-N-Out Burger has a new store policy prohibiting employees from wearing masks unless they have an approved doctor’s note. They confirmed this news in a telephone call.

The policy was introduced to “emphasize the importance of customer service and the ability to show our Associates’ smiles and other facial features.” They continue by stating that this will help “balance two things that In-N-Out is known for – exceptional customer service and unmatched standards for health, safety, and quality.”

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

Risking their employee’s health in such a fashion may be “unmatched,” but not in the way they believe. And if their only concern is seeing their employee’s smiles, there are masks with transparent windows over the mouth (e.g., ClearMask).

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

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

The policy does not apply in California or Oregon, where employers are not allowed to ban masking by employees. 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 for COVID-19 and other viruses and are recommended by OSHA for other respiratory protection.” Different masks may be allowed with a valid medical note. This suggests that In-N-Out recognize the value of N95, though they want to forbid employees from masking.

In-N-Out might want to recognize that 60% of people in the U.S. have underlying conditions that put them at increased risk for severe Covid. The CDC lists many of these on its site, including age, race, obesity, and former or current smoking and mood disorder. Surprisingly, they neglect to list autoimmune illnesses.

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 estimated duration.” How is this to be done without violating the employee’s privacy?

Requiring a doctor’s note is also a burden in terms of time and money. Many people don’t have a primary care physician or one who is readily available. And requiring proof of a disability might be considered a violation of the ADA (Americans with Disability Act), depending on how one interprets masking as a request for accommodation.

The Slippery Slope?

In California, a Bay Area woodworking employee caught Covid on the job. His wife contracted severe Covid, necessitating ventilatory support. The California Supreme Court recently ruled that the employee cannot claim workers’ compensation for the wife’s “take-home” infection. “Because while doing so would be a moral good, that good is outweighed by the potential flight of litigation,” the court ruled. “Recognizing a duty of care to non-employees in this context would impose an intolerable burden on employers.”

Writer Jessica Wildfire has a pointed commentary on In-N-Out Burger’s new policy. She notes the irony that “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 might adopt similar policies. Wildfire concludes, “Fast food workers don’t owe anyone their smiles.”

In New York, Mayor Eric Adams told store owners, “Do not allow people to enter the store without taking off their face mask.” He added that customers could then put them back on. This has been challenged by some, saying requiring mask removal violates the federal Americans with Disabilities Act and the New York State Human Rights Law.

Employee Protections Vary By State

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

In its May 11, 2023 update, the CDC states, “People may choose to mask at any time.” They add, “Layered prevention strategies — like staying up to date on vaccines and wearing masks — can help prevent severe illness and reduce the potential for strain on the healthcare 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 is not just In-N-Out pushing the urgency of normalizing behavior, despite ongoing Covid illnesses and deaths throughout the country. I’ve had repeated complaints from UPMC staff over the years that they are not allowed to wear N95 masks or, early on, to double mask. They are only allowed to wear flimsy surgical masks with ear loops provided to them. Similarly, patients have to request that staff caring for them mask. I asked the administration, “What if they are old, or confused, or just plain scared of authority? How will they know that they can ask without jeopardizing their care?” The only response was that patients should check signage.

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

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

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