As the “new normal” drags on longer than any of us would have hoped, some people are having a harder time adjusting than others. While nobody likes wearing a mask or practicing social distancing, what are an agency’s options and obligations with respect to an employee who can’t or won’t?
First things first: for as long as the June 18, 2020 statewide order requiring face coverings is in effect, the employer cannot allow an employee to be in the workplace and not comply. Further, the Occupational Safety and Health Act requires employers to provide a safe working environment for all workers, and permitting an employee to work without a mask or without social distancing compromises the safety of his or her colleagues, and also the safety of the employee. If an employee shows up to work without a face covering, he or she must be sent home.
If the employee claims to have a medical condition that prevents compliance, the employer should initiate the interactive process. The first step is for the employee to provide a doctor’s certification that the employee has a work restriction preventing him or her from wearing a face covering. The certification should not specify what the employee’s condition is. There are printable flyers or cards circulating on some corners of the Internet purporting to exempt individuals from wearing face masks: these are not valid and no employer should accept them. (A telltale sign is that many misspell HIPAA as “HIPPA”.)
If the employee has a work restriction, in virtually all cases, there will be only two potential accommodations: allowing the employee to work from home, or some type of leave. It’s always good for employers to think creatively in the interactive process, but an employer has no obligation to allow an employee to violate the law. Further, an accommodation is not reasonable if it puts others at risk. (California Code of Regulations, Title 2, § 11067.)
What about an employee who simply doesn’t want to wear a mask, or won’t follow social distancing requirements? Even if there is no State or County order in place, employees are required to abide by workplace rules. An employee who refuses to conform to such rules is subject to discipline. Employers should follow their progressive discipline policies – and continue to send the employee home each time he or she shows up maskless. Each time is a separate occurrence of misconduct. Social distancing violations may be tougher to spot, and therefore tougher to enforce, but employees should be encouraged to speak up if a colleague is failing or refusing to comply.
Is there potential liability for refusing to allow an employee to be in the workplace sans mask? These rules are too new to have been tested by the courts, and the creativity of plaintiffs’ attorneys knows no bounds. However, despite the comments of one out-of-state lawmaker, the “unmasked community” is not a protected class under state or federal law. An employee may be able to claim disparate treatment based on a protected class if an employer fails to enforce its mask policy consistently, e.g., argue that the policy is enforced less strictly on a different group, and the stricter enforcement on the plaintiff employee’s group is discriminatory. An employee may also argue that a mask requirement has a disparate impact: that their protected group is more burdened by an evenly enforced mask rule. Whether either of these arguments has any success in court remains to be seen.
An employee’s failure or refusal to wear a mask or practice social distancing can present complex issues for employers, and employers should seek counsel from their trusted legal advisors when approaching these issues.