Unmasking the Law, Part II: Can an Employer Fire You for Refusing to Wear a Mask?

Unmasking the Law, Part II: Can an Employer Fire You for Refusing to Wear a Mask?

The short answer: yes, but it was harder before April 3rd.

Some employers want all employees to cover their faces as a precaution against spreading coronavirus infections. This has increasingly been the case since the Centers for Disease Control (“CDC”) recommended the use of face masks generally on April 3rd. Yet some employees do not wish to take this precaution. In fact, our office has been flooded with inquiries from employees who want to know, “Can I refuse my employer’s directive to wear a mask?” In most situations, no you cannot. Nor should you want to.

With some exceptions, employers have always been able to institute policies as they see fit, including safety protocols. And as most states follow the at-will employment doctrine, employees can be terminated for refusing to comply with an employer’s policies—as long as those policies are not themselves illegal or hazardous. Since the CDC’s formally recommended mask use, employees not wanting to wear a mask have few good reasons to refuse. There are, however, exceptions that can justify your refusal. First, let’s take a look at the regulations on mask-wearing in the workplace.

Respirators and OSHA

Respirators are different from other, more general face masks, such as a surgical masks or home-made face coverings (see here for the distinction). Recently, the Particulate Respirator N95 mask (“N95”) has been in the news, largely because it is the preferred face covering for healthcare providers tending to COVID-19 patients. It is an example of a specialized respirator.

According to OSHA guidelines (see 29 C.F.R. 1910.134), employers may require the use of respirators when they are “necessary to protect the health” of workers, but employers are mandated by OSHA to provide respirators for situations that are “immediately dangerous to life or health.” Employers usually weigh employees’ exposure risk to hazardous materials when deciding whether to require respirators. Once a workplace institutes the use of respirators, it must provide training on proper respirator use, fitting procedures, and disposal. OSHA, however, does not explicitly mandate training for commonplace face masks.

If an employer requires the use of a respirator in a situation it deems “immediately dangerous” to your health or the health of patients or customers, you generally could be terminated for refusing to wear one. Your refusal could be seen as directly violating a reasonable employment policy mandated by labor law. Your employer could even fear its own legal liability for allowing someone to flaunt occupational safety regulations.

What about Regular Face Masks?

OSHA has not issued recommendations for surgical or home-made masks at work, and it is unclear to what extent they could be covered by OSHA regulations on “respirators.” Because we are in the midst of a viral pandemic, the CDC’s guidance has largely been viewed as the controlling authority on the use of non-specialized face masks in workplaces.

Prior to April 3rd, the CDC advised against mask-wearing for the general public because it believed masks were ineffective at protecting against coronavirus and it feared stocks of masks for medical personnel could be depleted. Employers were not obligated to require masks, but they could have done so if they desired, since employers are free to craft their own workplace safety policies. An employee opposed to this policy could have pointed to the CDC guidelines then in force, but an employer—with few exceptions—could have terminated an employee for refusing to wear a mask. It would have been difficult for an employee to contest the termination unless the mask presented a hazard itself or the employee could not wear a mask due to health reasons. If that were the case, the employee could lean on the CDC’s guidance and OSHA regulations to help make a sound case.

But that changed on April 3rd. As it became clear that people could be asymptomatic carriers of coronavirus, the CDC issued a new recommendation, encouraging people to wear face masks outside the home, including in the performance of work duties that are public-facing. Although the evidence is not yet definitive, public health officials now believe that homemade face masks can help decrease the likelihood that asymptomatic carriers will spread the disease. The CDC still advises the general public not to use surgical masks, N95 respirators, and other specialized masks in order to preserve stocks for medical personnel, but it does encourage cloth face masks for most people.

Since the new guidance was issued, employees are in even less of a position to resist wearing a mask when an employer mandates it. They would be opposing an otherwise lawful workplace policy, and now the CDC’s guidance would support the employer’s masking policy, not an employee’s refusal. In most instances, a mask requirement would be lawful and a refusal to wear one could be grounds for termination. An alternative could be taking an unpaid leave, essentially going on furlough, but for many workers this will simply not be a viable option.

When Can You Refuse to Wear a Mask?

There are a few occasions on which an employee could reasonably refuse to wear a face mask:

  1. If a mask interferes with your job. If wearing a mask so impedes you from performing a basic function of your job, you should bring this to your supervisor immediately. Perhaps your goggles get steamed up, impeding the precision sight needed for your work, or your team cannot hear necessary verbal commands through your mask. You should approach your employer and try to find a constructive solution together. Barring that, you can ask to be exempted from the requirement.
  1. If a mask itself creates a workplace hazard. OSHA guidelines (see 29 C.F.R. 1910.134(c)(2)(i)) recognize that respirators can at times create hazards of their own. Analogously, if a face mask were to pose an occupational danger, you could refuse to wear one. You would be within your rights to decline a mask if it prevented you from seeing or smelling a hazard, or it risked getting caught in machinery or catching on fire. Mask-wearing in such a situation could itself violate OSHA safety protections, and being terminated for refusing a mask would be unlawful.
  1. If a mask exacerbates a medical condition. The other time you could decline to wear a face mask is if a legitimate medical condition prevents you from safely doing so. If you have a pre-existing respiratory problem, such as asthma or COPD, you should be able to obtain an exemption from your employer. Non-respiratory conditions, such as medically documented claustrophobia or anxiety attacks, will present more difficulty but may also allow for an exemption. You can ask for an accommodation under the Americans with Disabilities Act or a state law, such as the Illinois Human Rights Act. It is best to provide a doctor’s note to assure your employer of the existence and severity of your condition. Your employer will have to work with you to determine whether a reasonable accommodation can be provided, as long as the exemption poses no undue hardship to the business.

Barring these few exceptions, you will not have much room to argue that a mask-wearing policy runs afoul of the law. Nor should you want to. Although the evidence is not conclusive, increasing research is pointing to the benefits of commonplace mask-wearing, and public health experts in the U.S. have followed the CDC in recommending mask use for the general public. Masks help protect you and those near you from a potential COVID-19 infection.

Mask Requirements and Their Consequences

Keep in mind that your employer is not the only entity able to require a face mask. Some governmental bodies are also mandating them: several states, including Illinois, have required face masks while performing essential work, using public transit, or anytime one is in public and near others. Many cities have also adopted such policies. The city of Laredo, Texas will even levy a fine of up to $1000 for failure to wear a mask in public. Various municipalities in the Chicago area are requiring face masks, and the village of Wilmette is even permitting businesses to refuse service to anyone not abiding by the requirement. Depending on the locale, consequences for refusing to follow a face mask order can vary from no enforcement to being warned, receiving a citation, or even facing arrest.

With the added protection that face masks can provide, as well as the legal disincentives imposed by local governments, it is in an employee’s best interest to abide by their employer’s masking requirements. If you choose not to, and you cannot avail yourself of the few exemptions available, you must remember that employment in most places is an at-will arrangement and you could be disciplined or terminated for your refusal. Lastly, if you are working, remember that many others are not so fortunate: millions of workers have been furloughed or simply eliminated. Complying with a face mask regulation is a small price to pay for maintaining employment. After all, you can always disguise your displeasure—with a mask.

* * *

Click here to read “Unmasking the Law, Part I: Can an Employer Fire You for Wearing 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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