Guidance on Employees Who Don't Want to Wear a Mask - by George Adams
Employees Who Don’t Want to Wear a Mask - July 24, 2020
George D. Adams, Partner, Fisher & Phillips LLP
As the COVID-19 pandemic rolls on many employers have been confronted with employees who do not want to wear a cloth face covering (which most people refer to as “masks”). Those challenges likely will increase for Indiana employers on Monday, July 27, 2020. Indiana Governor Holcomb is expected to sign an Executive Order today that will, as of July 27, require everyone age 8 and older to begin wearing masks in public indoor spaces and commercial entities. The Order is expected to include exceptions for medical purposes and disabilities.
Some employees just don’t want to wear a mask, but others may have medical conditions that impair their ability to wear one. Hint: If your employee doesn’t want to wear a mask telling them to quit griping and get back to work is not the best practice. A better approach is to discuss “no-mask” requests with the employee to understand the reason for the request, whether it must be accommodated, and how it may reasonably be accommodated (maybe even if accommodation is not legally required). Here’s a hypothetical example of how that conversation could go:
- Pat, the mask is not just for your safety, it’s also for the safety of people around you. Why should we allow you to work without a mask when all your coworkers are wearing masks to protect you?
If the employee merely dislikes wearing a mask, objects on political or philosophical grounds (e.g., “there’s no real pandemic, this is a government conspiracy”), says it’s uncomfortable, or gives some other non-medical reason you generally can and should enforce your rule. If you’re inclined to make some sort of exception solely out of the goodness of your heart, be sure to do so consistently to reduce potential discrimination exposure. If the employee indicates there is a medical condition involved that could be a disability, ask some more questions.
- What sort of medical condition do you have that prevents you from wearing a mask?
The Americans with Disabilities Act and most similar state laws allow employers to gather information to determine whether an employee is entitled to a reasonable accommodation and what that accommodation might be. You can only ask questions related to the employee’s job and necessary for you to determine what obligations you may have. You must treat any medical information you receive as confidential (including storing it in a medical file separate from the employee's personnel file).
- We’ll need information from your health care provider, confirming your medical condition and why not wearing a mask is medically necessary. Will you sign an authorization so we can get that information?
Employers do not have to take an employee's word regarding medical conditions or reasonable accommodations and should not do so. Get the employee’s health care provider’s opinion and use that to guide your decisions. The healthcare provider may determine the employee does not have a medical condition at all, the employee is not disabled, the employee can wear a mask, other accommodations are feasible (e.g., periodic “unmasking” in safe areas), or the employee should not work at all (with or without a mask). An employee who just wants to get out of wearing a mask, without any real medical need, may give up and comply at this point. Note: don’t be fooled by the phony “ADA cards” that are going around.
- Is there something else we could do instead of just allowing you to work without a mask?
Even when an employee is entitled to an ADA reasonable accommodation, employers do not have to provide the employee's preferred accommodation. Rather than simply allowing the employee to work “mask free,” perhaps the employee could wear a clear plastic face shield, or could be assigned to a work area where social distancing is easier to maintain (a mask or shield would still be required when moving through other areas, etc.), or maybe you could install clear plastic barriers around the employee’s work area. Potential accommodations are virtually unlimited, although many may not be reasonable.
The pandemic has created a tangled web of potential legal liability relating to disability discrimination and accommodations, other types of discrimination and harassment, health and safety issues, protected concerted activity, the FMLA, unemployment benefits, and several new laws. If you are unsure how to navigate any issues you encounter, consult experienced legal counsel.
This article provides an overview of certain legal issues. It is not intended, and cannot be construed, as legal advice for any purpose. For more information, contact the author in Fisher & Phillips’ Louisville, Kentucky office (502-561-3975).
George Adams, Fisher & Phillips LLP
220 West Main Street | Suite 1700 | Louisville, KY 40202
[email protected] | O: (502) 561-3975 | C: (502) 594-1102