Unmasking the Law, Part I: Can an Employer Fire You for Wearing a Mask?

Unmasking the Law, Part I: Can an Employer Fire You for Wearing a Mask?

The short answer: not today, but possibly if it was before April 3rd.

Employers risk violating workplace safety laws if they prevent workers from protecting themselves, but employers do not need to go above and beyond the directives of public health agencies, such as the federal Occupational Safety and Health Administration (“OSHA”) or the Centers for Disease Control (“CDC”).

Earlier in the pandemic, the CDC advised against mask-wearing for the general public. Likewise, the U.S. Surgeon General stated in a February 29, 2020 tweet that wearing masks was “not effective in preventing general public from catching #Coronavirus,” in part because the widespread use of masks could deplete stocks for medical personnel. These agency positions meant that most employers did not need to allow masks in their workplaces. And since most employment is at will, you probably could have been legally fired, unless you requested a disability accommodation to wear a mask.

A coffee shop in Kansas illustrates this point. The business was maintaining a strict cleaning protocol and closed its indoor seating area mid-March, but it drew the line at wearing a face mask, even for those in customer-facing roles, when barista Grayce Leeper came to work with her face covered. Management informed her that the CDC did not mandate masks for healthy people and that the shop was concerned about how masked employees appeared to the public. Ms. Leeper was told she could either take the mask off or go home. Not wanting to be put in harm’s way, Ms. Leeper felt she had to leave her job.

Usually workers look to OSHA for clear direction in workplace safety matters. Yet OSHA’s COVID-19 guidance for workplaces, published in early March, is merely advisory and admittedly “creates no new legal obligations” for employers. Its guidance on personal protective equipment (“PPE”) is general: face masks may be needed in some workplaces, depending upon the exposure risk employees are faced with. A barista, for example, would face “medium” exposure. So does that mean Ms. Leeper was entitled to a mask in the workplace? Was her employer within its legal rights to deny her the use of one?

OSHA has stated that all of its usual regulations remain in force during the pandemic, including the General Duty Clause, Section 5(a)(1) of the Occupational Safety and Health Act, which requires employers to provide a work space free from hazards that are likely to cause death or grave physical harm. Its regulations on a worker’s right to refuse hazardous work also still hold. A worker may refuse to perform work if all the following conditions are met:

  1. Where possible, you have asked the employer to eliminate the danger, and the employer failed to do so; and
  2. You refused to work in "good faith." This means that you must genuinely believe that an imminent danger exists; and
  3. A reasonable person would agree that there is a real danger of death or serious injury; and
  4. There isn't enough time, due to the urgency of the hazard, to get it corrected through regular enforcement channels, such as requesting an OSHA inspection.

The main question at the coffee shop was whether a “real danger” was present. Ms. Leeper could have argued that she faced enough of an occupational exposure risk to merit a face mask according to OSHA’s guidance. The coffee shop, however, could have claimed that the threat was not imminent and that only the CDC can determine what constitutes a threat in the sphere of immunology. It then could have pointed to the CDC’s advisement against the use of face masks—which is exactly what it did. And given that Kansas is an at-will employment state, it would have been difficult to bring some sort of wrongful termination suit against the coffee shop if it had terminated Leeper.

CDC Shifts Its Guidance

Federal guidance shifted shortly after Ms. Leeper was given her ultimatum. As it became clear that people could be asymptomatic carriers of coronavirus, the CDC issued a new recommendation on April 3rd, encouraging people to wear face masks outside the home, including in the performance of work duties that are public-facing.

The CDC’s new guidance likely helped bolster the thousands of complaints employees recently lodged with OSHA over workplace safety violations. A good number have been from hospital workers who complain of being prevented from covering their faces at work. Some were even told they could not wear face masks because “it hurts patients’ feelings.

Since the CDC’s change, employees now have a strong basis for requesting a face mask. An employer could only deny the request if a face mask would pose a safety hazard of its own. Since that would rarely be the case, employers would likely be in violation of the law if they terminated an employee merely for wearing a face mask. If you do find yourself terminated over a mask, you have numerous legal remedies available to you and the burden will be on your employer to explain your termination.

Legal Remedies for Terminated Workers

Two employees in Chicago recently filed suit against their former employers over wearing a face mask. One was a security guard at a hospital. Marvell Moody wore a mask to work because he feared contracting COVID-19 and passing it onto his elderly mother for whom he was caring and who suffered from underlying medical conditions. The next day his supervisor informed him that the hospital had a policy against security guards wearing masks and that he would be disciplined if he wore one again. Mr. Moody told his supervisor and some co-workers that the policy was unsafe. Not knowing what else to do, Mr. Moody did not return to work and filed a “constructive discharge” claim.

Lauri Mazurkiewicz was a nurse working directly with COVID-19 patients. Her workplace was provided with face masks that were not as protective as a Particulate Respirator N95 (“N95”) mask. She e-mailed co-workers and superiors to inform them that the masks they were using were subpar, that N95 masks were more protective, and that she would be wearing an N95 mask of her own. Ms. Mazurkiewicz’s employment was terminated the following day. She claims that she was fired for wearing a more protective mask than the ones provided and for warning her colleagues of a workplace hazard.

Although these employees filed suit just before the new CDC regulations were announced, their OSHA claims would have been strong: the security guard’s exposure risk was “high” and the nurse’s the highest possible, “very high.” Yet both Mr. Moody and Ms. Mazurkiewicz have opted to bring claims under the Illinois Whistleblower Act, alleging that they alerted their workplaces about unsafe conditions and were terminated in retaliation for doing so. While their employers might try to claim they were problematic employees—by being insubordinate or fomenting workplace disruptions—their proximity to COVID-19 patients meant their anxiety over workplace hazards was reasonable and their employers’ refusal to allow (proper) masks was likely illegal. If the courts take the revised CDC guidance into account, these hospital workers’ claims become even more compelling.

Even though they limited themselves to whistleblower charges, Mr. Moody and Ms. Mazurkiewicz could have brought claims under the National Labor Relations Act (“NLRA”). Section 7 of the NLRA protects workers who undertake “protected concerted activity for mutual aid or protection” related to the terms and conditions of employment. The NLRA protects a group of workers or a single worker acting on behalf of colleagues, including when they “talk with one or more co-workers…about working conditions” or are “participating in a concerted refusal to work in unsafe conditions.” These hospital workers discussed their lack of protection with other employees and appear to have been terminated both for wearing a mask and for their communications about safety.

Workers who are terminated for wearing a mask may also have disability claims under the Americans with Disabilities Act (“ADA”) or the Illinois Human Rights Act (“IHRA”). A mask to protect against COVID-19 can serve as a reasonable medical “accommodation” if an employee has an underlying health condition and contracting the novel virus would lead to increased chances of mortality. Employees can formally request a mask accommodation and provide a doctor’s note indicating their legitimate medical need for a mask. They can also propose alternative accommodations, such as working from home. If an employer decides to terminate over a mask in such a situation, that termination could constitute disability discrimination.

Both the ADA and the IHRA offer protections against discrimination on the basis of “perceived” disability. That is, even if a worker does not actually have a disability, an employer engages in disability discrimination if it terminates the worker based on a belief that the worker is disabled. Therefore, an employer could open itself up to legal liability by indicating it perceives the use of a mask in connection with a disability and then terminates because of that mask use.

Lessons Learned

Even if the coffee shop and hospitals had been standing on solid legal ground, their refusal to allow masks led to a public relations nightmare. Numerous media outlets have covered each of these instances. The barista even highlighted how she was in tears after being instructed to put herself in harm’s way merely to make a living—and for a job that didn’t even offer her health insurance. When confronted with employees wanting to protect their health by reasonable measures, an employer’s best response is usually to allow them to do so.

Interested parties will have to wait to learn the outcome of the hospital workers’ lawsuits until the courts re-open. We won’t have to wait to hear from the coffee shop in Kansas, however: since the CDC issued its new guidance, the coffee shop now recommends that its franchisees allow employees to wear face masks.

* * *

Click here to read “Unmasking the Law, Part II: Can an Employer Fire You for Refusing to Wear a Mask?” Click here to see a video short on this matter.

If you would like to donate PPE such as face masks to healthcare personnel, consider these organizations: GetUsPPE, Mask Match, or Masks for Heroes. You can find additional resources here or check your local hospital’s website to see if it is in need.

Read our earlier coverage of employee rights related to COVID-19 here. If you are an employee or an employer with questions about face masks or other workplace issues during this time, make sure to contact an experienced employment and business attorney.

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