The CDC recommends the wearing of face masks as one way to slow the spread of the novel coronavirus, and 29 states and the District of Columbia have instituted or announced statewide orders requiring face coverings in public, with similar but varying requirements. Even states that do not have mask orders are strongly recommending that citizens wear masks in public to slow the spread of the coronavirus (Hello, Georgia). So it is not surprising that many private employers have enacted work rules that require employees to wear face coverings at work. But where there are work rules, there are always employees who just don’t want to follow them. To make matters worse, the issue of face coverings is highly politicized, and the internet and social media provide creative but usually invalid excuses for employees to use when they refuse to wear a face covering. So let’s talk about how a private employer can handle employee excuses for refusing to wear a face covering.
- Wearing a mask violates my religion. This excuse requires further inquiry by the employer. Title VII requires covered employers to accommodate the sincerely held religious beliefs of employees. Therefore, in response to this statement, the employer can inquire into what sincerely held religious beliefs the employee ascribes to, and what part of that religion’s doctrine forbid face coverings. I am aware of religions that require face coverings, but not one that would forbid a person from wearing one, so this should lead to an interesting conversation.
- I can’t wear a mask for medical reasons. The Americans With Disabilities Act generally requires a covered employer to provide a reasonable accommodation to a qualified person with a disability. Therefore, this type of statement should trigger the ADA’s interactive process through which the employer and employee work out a reasonable accommodation. The employer should obtain permission from the employee (in the form of a signed HIPAA release) to confer with the employee’s physician to discuss possible reasonable accommodations. Of course, all medical information should be kept confidential.
- I can’t wear a mask because I can’t breathe and I will pass out. If this is due to a documented medical condition (perhaps COPD or asthma?), then the employer should start the interactive process discussed above. The employer may need to provide different types of masks that are more comfortable for those with breathing problems or mask free breaks during the workday. Otherwise, the employee needs to wear the mask; medical professionals wear masks all the time without passing out.
- I don’t want to wear a mask because it makes me breathe in my own CO2. This excuse seems to based upon internet junk science and is not valid.
- Wearing a mask violates my liberty rights. Just no. This is a not a valid excuse.
- I can’t wear a mask because it makes me feel anxious or claustrophobic. If this excuse is based upon an actual diagnosis from a health care professional, the employer should start the interactive process discussed above. The employer can offer different mask options so that the employee can pick one that is most comfortable and perhaps provide mask free breaks during the workday. Absent a medical diagnosis, however, this may just be another way for an employee to say that they just don’t want to wear a mask.
- I don’t care if you have a rule; I won’t wear a mask. At least this employee is being honest with you. However, the refusal to follow an employer’s reasonable work rule is considered insubordination and it should result in some kind of discipline. The employer should be consistent in the way it disciplines employees for violations. If you ignore some employee violations of a rule but enforce the rule against others, you are setting yourself up for a possible claim of discrimination. And failing to enforce a workplace rule is often worse than having no rule at all. So you will need to deal with the mask refuser appropriately.
As a final note–if you have a rule requiring face coverings at work–make sure that employees are not only wearing face coverings, but that they are wearing them correctly. The face covering should cover the nose and mouth. You may need to provide some gentle reminders to employees from time to time.
Kathleen J. Jennings is an attorney licensed to practice law in Georgia and New York. She graduated from Cornell University, College of Arts & Sciences, with distinction and New York University School of Law. She is a principal in the Atlanta office of Wimberly, Lawson, Steckel, Schneider, & Stine, P.C. and defends employers in employment matters, such as sexual harassment, discrimination, Wage and Hour, OSHA, restrictive covenants, and other employment litigation and provides training and counseling to employers in employment matters. She can be contacted at firstname.lastname@example.org.
©2020 Kathleen J. Jennings
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