As the controversy about face mask mandates continues, employers are faced with the realities of operating their businesses while keeping employees and customers safe amid the coronavirus pandemic.
With health experts including the Centers for Disease Control (CDC) and Physician and Immunologist Dr. Anthony Fauci explaining that wearing face coverings is one of the most important ways to stop the spread of COVID-19, employers are requiring employees and visitors to wear masks to comply with local and state mandates.
Many states' governors’ executive orders require face masks in indoor work and commercial settings, but can an employee refuse to wear a mask? Axcet HR Solutions HR Consultant Lacey Conner, SHRM-CP, says yes, but there are consequences for doing so.
According to Conner, employers are obligated to find out why the employee is refusing to wear a mask, as there are two federal laws that may come into play: the Americans with Disabilities Act (ADA) and Family Medical Leave Act (FMLA).
Americans with Disabilities Act
The ADA protects the federal civil rights of individuals with disabilities to equal opportunity in services and accommodations, including employment. It applies to employers with 15 or more employees and prohibits discrimination against disabled persons in all areas of employment. When an employee refuses to wear a mask because of a medical condition, the employer should start the ADA interactive process and ask questions about why they are doing so, and discuss alternatives to wearing a face mask.
Ask questions about how the employee’s disability precludes wearing a face mask, how the accommodation will address the problem, and if the employee will still be able to perform the essential functions of the position. The employer must provide reasonable accommodations if possible, and if the employee can still perform normal job duties with accommodations such as telework, leave, flexible scheduling, or other barriers.
The Department of Justice June 30, 2020 press release states “The ADA does not provide a blanket exemption to people with disabilities from complying with legitimate safety requirements necessary for safe operations.” If the employee doesn’t have an obviously visible or detectable disability, an employer can ask for medical verification of disability.
Under the ADA, there are a few things that could cause an employer to deny an employee an alternative reasonable accommodation instead of wearing a face mask:
If the employee doesn’t have an obvious disability and can’t provide medical verification of disability.
If the employee’s request for accommodation would prevent performance of the essential functions of the position.
If the accommodation would cause undue burden or hardship for the employer.
If by not wearing a face mask but with other accommodations, the employee presents a direct threat, in the case of the pandemic, a threat to public health.
Experts agree that employees can’t refuse to wear a face mask because of disability without showing disability and need. University of Houston law professor Jessica Roberts told USA TODAY there must be a legally recognized disability for ADA protections. And Minnesota Law School professor Stephen Befort says that employees with disabilities must demonstrate that wearing a mask would significantly interfere with breathing or necessary functions to claim they need an exemption from the mask as a reasonable accommodation.
For further information about ADA see ADA.gov or call the ADA Information Line at 800-514-0301.
Family Medical Leave Act
FMLA covers eligible employees with serious health conditions that make them unable to perform essential job functions. Eligible employees are those who have been employed for at least a year and working 1250 hours in the last year. With an FMLA certification from their health provider, eligible employees can take up to 12 weeks of job-protected leave per year.
Serious health conditions which may affect mask wearing include chronic conditions or long-term conditions that require ongoing care, and are certified by a physician. In a pandemic where health officials, scientists, and state and local authorities have stated that wearing a face mask controls spread of disease and is a public health issue, employers are making face coverings an essential job function.
If after discussing the issue with the employee refusing to wear a face mask because of disability the only option is leave, or excluding the employee from work because performing the work can’t be done without a face covering, FMLA leave paperwork should be started.