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Refusing to Wear a Mask at Work Could Get You Fired

May 20, 2020, 10:00 AM

Workers who refuse to wear face coverings during the pandemic can face discipline or termination, with scant legal options available for them to challenge that coronavirus prevention policy.

Mandatory face-covering policies at work are a common component of most tentative reopening plans, based on recommendations from the Centers for Disease Control and Prevention, as well as state and local governments, to stem the spread of Covid-19.

This safety precaution is a term of employment that, if broken, can justify a termination except in limited circumstances, such as medical or religious reasons that prevent a worker from wearing a face covering, attorneys said. Union-represented employees, and public workers who object to the policy based on free speech, also have little recourse to avoid discipline.

“In essence, they’re saying ‘I really don’t want to work here,’” said Katherine Dudley Helms, an Ogletree Deakins attorney who represents employers. “That really is like someone coming in and saying ‘I don’t like your rules.’”

Few Legal Options

Most employment in the U.S. is “at will,” meaning employers can fire workers for any reason as long as it doesn’t violate the law. Those reasons can include a worker’s failure to adhere to safety precautions that employers are entitled to implement, Katz, Marshall & Banks senior counsel Carolyn Wheeler said.

Wheeler, who represents workers, said she’s seen more complaints on the opposite end of the spectrum. She said workers are concerned about returning to a potentially unsafe workplace if a business hasn’t taken adequate precautions to mitigate potential virus exposure.

A worker could contend that a face covering is discriminatory under Title VII of the 1964 Civil Rights Act if an employer implements or enforces it for certain groups of workers and not others. For example, an employer could face claims of race or sex bias if it doesn’t discipline a white, male executive who isn’t abiding by the policy, but enforces it among minority or female workers.

But an employer who is “even-handedly” enforcing the policy for all workers should be well-prepared to defend against such claims, Seyfarth Shaw partner Howard Wexler said.

Medical, Religious Exceptions

Workers who have a respiratory illness or other medical reason that prevents them from wearing a face covering may have more options to challenge the policy.

They must inform an employer of their condition, which triggers an interactive process to determine whether there’s a possible reasonable accommodation under the Americans with Disabilities Act, Wexler said.

Similarly, workers opposed to wearing a mask on religious grounds also need to discuss potential accommodations with an employer, Fordham University School of Law professor James Brudney said.

“But all of these are limited exceptions to the employer’s basic right to devise and enforce nondiscriminatory work rules, including those pertaining to clothing,” Brudney said.

Employer leniency on a face-covering policy also introduces a slippery slope if some workers who oppose masks are allowed a compromise, such as working from home, Wexler said.

The modification could expose an employer to a bias claim if one worker and not another is allowed to circumvent the policy. For example, if a male worker is allowed to work from home because he’s opposed to wearing a mask, but a female worker isn’t afforded the same leniency with the policy, then she could claim sex discrimination is occurring.

Unionized Workplaces

Having union representation isn’t likely to let a worker flout face-covering rules, either. Unionized employers have wide latitude to enforce workplace regulations that were implemented properly, labor lawyers said.

The Covid-19 pandemic presents the type of pressing circumstance that would allow a company to unilaterally impose a face-covering requirement, attorneys said. The employer would then need to notify the union about the new policy and bargain over its effects.

“The safer approach is to give the union a heads-up and communicate then, since there’s usually a common interest in health and safety,” said Steven Bernstein, an attorney at the management-side firm Fisher & Phillips. “Having a union partner in that process can be valuable.”

Nonunion employers that are concerned about their workers unionizing may want to provide face coverings if they require them, said Sara Kalis, an attorney who represents employers for Paul Hastings. Unions have been giving out masks emblazoned with union insignia to workers as part of organizing campaigns, she said.

The law typically permits workers to wear union buttons unless there is a safety reason to prohibit them, Kalis said. That would probably apply to union insignia on face coverings as well, she said.

Rejecting Masks as Political Protest

The political divisions among Americans over the severity of the Covid-19 crisis—with some even claiming that the pandemic is a hoax—could give rise to workers who refuse to wear masks in symbolic protest. While that wouldn’t matter in the private sector, government workers have First Amendment rights if they’re speaking as citizens about matters of public concern.

But government employers have the authority to enforce regulations on their employees’ conduct designed to protect health, safety, and welfare of the public, said Clay Calvert, director of the Marion B. Brechner First Amendment Project at the University of Florida.

A public employer’s ability to enforce a safety rule that’s generally applicable to its workers would trump an individual worker’s free speech rights, Calvert said.

Moreover, requirements to wear a mask aren’t designed to restrict speech in any fashion, further weakening a protesting worker’s claim, said Robert Richards, founder and co-director of the Pennsylvania Center for the First Amendment at Penn State.

Although it’s a closer call if the public employee is in a jurisdiction without a current state or local order addressing the pandemic, a worker who refuses to wear a face covering out of political conviction would still probably lose in court, said attorney Mark Frost, who represented a New Jersey police officer who prevailed in a free speech dispute at the U.S. Supreme Court in 2016.

“Courts would favor public employers who impose mask rules,” Frost said, “because there’s the chance for real harm to the individuals involved and those who they may be exposing.”

To contact the reporters on this story: Paige Smith in Washington at psmith@bloomberglaw.com; Robert Iafolla in Washington at riafolla@bloomberglaw.com

To contact the editors responsible for this story: Jay-Anne B. Casuga at jcasuga@bloomberglaw.com; Karl Hardy at khardy@bloomberglaw.com

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