With the reopening process well underway in all 50 states, employers are implementing a variety of plans, policies, and protocols to minimize the potential for employee transmission of the coronavirus in the workplace. These plans – discussed in our Employer’s Guide to Return-to-Work Issues – include making physical changes to the workplace, rearranging employee schedules, and other infection-mitigation measures. As part of these new protocols, many employers also are mandating that employees wear face coverings in the workplace, as well as practice, and adhere to, the now familiar six-feet-of-separation social distancing guidelines.
However, a vocal segment of our population find public health measures like social distancing to be unnecessarily restrictive, or even a violation of constitutional rights, and that requirements to wear face coverings infringe on personal freedoms.
So, what if you are an employer and have implemented a COVID-19 return-to-work protocol which includes a requirement that all employees wear face coverings, and one of your employees refuses to do so?
The answer here is thankfully both short and relatively easy. Unless the employee’s refusal is based on a medical reason that he or she cannot wear a face covering, or is for a religious reason, a private employer can require that the employee comply with its face covering requirement. That means that the employee who simply refuses to wear a face covering because he or she thinks that it’s unnecessary or a violation of personal liberties can be suspended or even terminated if he or she continues to refuse to comply.
But when must an employer proceed with caution? Under the Americans with Disabilities Act, an employer must reasonably accommodate qualified individuals with disabilities so that they can perform the essential functions of their jobs. So, for example, if an employee objects to wearing a face covering because she has asthma or another respiratory condition that makes wearing the covering medically inadvisable, the employer is obligated to determine whether an accommodation can be made that will permit the employee to continue to work. That could include, for example, moving the employee’s workstation to a location further away from others, or scheduling the employee to work at a time when she is not in close contact with others. Likewise, under Title VII of the Civil Rights Act of 1964, employers cannot discriminate against employees based on their sincerely-held religious beliefs, and also are required to reasonably accommodate those beliefs. Thus, if an employee objects to wearing a face covering for a legitimate religious reason, as with a disabled employee, the employer must attempt to reasonably accommodate the employee. Also, bear in mind that if employees are discussing an employer’s rule requiring wearing of face coverings in the workplace – perhaps discussing why they believe the rule unnecessary – employers should exercise caution in how they respond, as the employees could be engaged in concerted activity protected under the National Labor Relations Act. Finally, if the employer’s employees are represented by a labor union, an employer should review any applicable collective bargaining agreement to determine whether it may unilaterally impose a face covering requirement.
What about a refusal to comply with other CDC guidance, such as maintaining social distance? If an employee refuses to comply with those requirements in the workplace, can an employer discipline or even terminate the employee? Here again, the answer is yes, so long as the employer enforces its workplace social distancing requirement on a non-discriminatory, non-retaliatory basis. (Here, however, a gentle reminder, followed by progressively more direct instructions to comply, hopefully will work and not require formal discipline or termination of employment.)
More complicated questions are sure to arise – what about the employer that sees an employee’s post on Facebook or Instagram of the employee attending a tightly-packed party, surrounded by others, none of whom are wearing face coverings? Can the employer refuse to allow the employee to report to work based on the employee’s failure to adhere to social distancing and face covering recommendations outside the workplace and concern that the employee consequently could bring the coronavirus into the workplace? Or is that taking matters too far?
Unfortunately, inasmuch as employers have never had to confront these issues before, these questions will have to be addressed as they arise.