Recently, in light of COVID-19, many people have asked me if they can mandate that their employees wear face masks or coverings in the workplace.
Well, the short answer is, yes . . . generally.
A business may implement a workplace policy or rule that requires its employees to wear a face mask or covering and other personal protective equipment (PPE). However, that decision should not be made arbitrarily – instead – the business would want to be able to show a legitimate business reason as to why the rule is in place.
Under the current circumstances, requiring the use of a mask and PPE to address safety concerns related to the COVID-19 pandemic would likely be considered a legitimate business reason. In fact, some employers are being ordered to make it a requirement pursuant to a patchwork of local or state mandates requiring masks be worn to slow the spread of the coronavirus.
But, what should an employer do if an employee refuses to wear a face covering or reports that he or she has a medical or other legitimate reason that makes it so he or she cannot wear a face mask or covering
First – the easy part. Individuals claiming to have a constitutional right to not wear a mask, in actuality, have no such right in a private business or workplace. You know those signs that say “no shirts, no shoes, no service” – just add “no masks” to the end of that list and you get the idea.
However, what happens if an employee asserts that they cannot or will not wear a face covering, due to some medical condition or religious objection? Well in most cases that would trigger and employer’s obligation to enter the process to provide accommodations to individuals with disabilities under the Americans With Disabilities Act (ADA) (and religious accommodations under Title VII).
If any employee claims to have a medical impairment that restricts them from wearing a facemask, that triggers the interactive accommodation process under the ADA. There are in fact several potential disabilities that could restrict an employee’s ability to weak a mask in the workplace, including: respiratory impairment, anxiety disorder, skin condition, or a disability where the employee requires assistance in putting on or removing the face covering.
If you as an employer are faced with such a situation, then you should follow your standard interactive process and procedures, which may include sending the employee home pending completion of the interactive process. As part of the interactive process, the employer may request additional information and medical documentation from the employee regarding his or her medical condition and restriction of being unable to wear a face mask or covering.
After receiving the additional information and medical documentation from the employee, if any, the business would have to evaluate whether the employee requires a reasonable accommodation, and if so, what reasonable accommodation works best for the business.
Some factors the employer may consider could include:
- Does the employee actually have a condition (a disability) that may need to be accommodated under the ADA, and can the individual furnish reliable medical documentation to confirm their inability to wear a mask or other face covering?
- What are the essential functions of the employee’s job, and is face-covering an essential job function?
- Are there viable alternatives to the mask or face covering requirement, such as working remotely, or other methods for isolating the employee from others?
- Would eliminating the face covering pose an undue risk to the safety and health of the employee or others?
If an employer ultimately determinates that the employee has provided a legitimate medical reason for not being able to wear a face mask or covering, then it falls on the employer to provide that individual a reasonable accommodation, which could include the following:
- Providing the employee an unpaid leave of absence until face masks or covering are no longer required at work;
- Allowing the employee to work remotely; or
- Providing an alternative face mask or covering that is allowed by the employee’s medical condition.
On the other hand, an employer may determine that, at this point in history, wearing a face mask is an essential function of that employee’s job responsibilities.
In cases that have addressed a business’ requirement that an employee wear PPE and an employee’s objection based on a disability, courts have ruled it is not an ADA violation for an employer to require an employee to wear PPE to address a safety hazard as part of an essential function of the job/position, where the business is addressing a safety concern.
Finally, the accommodation request may instead stem from religious beliefs rather than medical restrictions. The same general process is applicable (albeit without seeking medical documentation), though the hardship test in religious accommodation cases only requires the employer to establish more than a de minimis hardship. As such, enforcing a face-covering rule may be easier to defend in this context.
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About Harrison Oldham
Harrison grew up in Mansfield, Texas. He attended Texas A&M University for his bachelor’s degree, where he met his wonderful wife, Kelsey. After graduating magna cum laude from Texas A&M, he attended SMU Dedman School of Law, graduating with honors in 2012. Today, Harrison and his wife live in Dallas, Texas with their son, Teddy.
Since graduating from SMU Law, Harrison has worked exclusively in the field of business law. He has spent time in private practice and in-house, working with clients of every size; from single person startups to Fortune 250 companies. Today his practice focuses on serving the diverse needs of businesses and individuals throughout Texas. You can learn more about Harrison by visiting his website, at: http://