In its Pandemic Preparedness in the Workplace and the Americans with Disabilities Act, the Equal Employment Opportunity Commission (“EEOC”) confirmed that, during a pandemic, an employer may require employees to wear personal protective equipment that is designed to reduce the transmission of infection, including face masks or gloves. As businesses reopen, many employers are requiring employees to wear masks. And some state and local governments are requiring or recommending that masks be worn in public. So what can an employer do if an employee refuses to wear a mask?
In short, it depends on why the employee is refusing to wear a mask. If an employee simply objects to wearing a mask because of personal preference or political beliefs, private employers may generally discipline or terminate the employee for refusing to wear a mask. Employers with unions should make sure to consult their collective bargaining agreements.
If an employee objects to wearing a mask on religious grounds, however, the employer should engage in the interactive process as envisioned by Title VII of the Civil Rights Act to determine whether an accommodation can be reached.
Similarly, if an employee claims that he has a medical condition that prevents him from wearing a mask, then the employer should engage in the interactive process as required by the Americans with Disabilities Act (“ADA”) to determine whether the employee has a disability and needs a reasonable accommodation. Examples of such medical conditions could include claustrophobia, COPD, or asthma. If the employee’s medical condition prevents him from wearing a mask, the employer should consider whether any reasonable accommodations are available that would not create an undue hardship or pose a direct threat.
Potential accommodations could include reassigning the employee to a position where he would not be required to work around others, providing a limited leave of absence until masks are no longer required, allowing the employee to work remotely, or providing an alternative mask or face covering, if permitted by the employee’s medical condition. Providing a leave of absence, however, may only be practical for a short time. An employer is not required to provide an indefinite leave of absence as an accommodation.