Author: XpertHR Editorial Team
As employers operate during the COVID-19 pandemic and implement safety and health precautions throughout their workplaces, one issue many are facing is noncompliance with face mask requirements. Whether employers are obligated to require mask wearing by a state or local mandate or taking it upon themselves to require them as a way to reduce the transmission of COVID-19 at work, it is undoubtedly a sensitive situation to confront for various reasons.
The Centers for Disease Control and Prevention (CDC) and the Occupational Safety and Health Administration (OSHA) recommend the wearing of a cloth face covering as a way to contain the wearer's respiratory droplets that may contain the virus that causes COVID-19. Face coverings are meant to prevent employees, including those who do not know they have the virus, from spreading it to others. Several states and localities require that face coverings be worn by employees while at work while some businesses have implemented mask requirements across all their worksite.
An employer should follow the steps below when addressing an employee who refuses to wear a mask while at work.
Step 1: Reinforce the Organization's Position on Masks
Begin by reminding the employee that all employees are required to wear a mask at work. Whether masks are mandated by a state or local order or by a workplace policy, the employee must be made fully aware of the employer's position on mask wearing, why the wearing of one is required, and the consequences for noncompliance. See Step 3 for more information on having this conversation.
If the employer is complying with a state or local order, explain how and why the organization is covered under such an order and have copies of the relevant documents available upon request. Direct the employee to a government official or department should they have any questions.
If the employer is not subject to a government order but is rather following CDC and OSHA guidance that employers should encourage employees to wear a mask, advise them of the organization's position. Importantly, inform them that the employer has the right to require that employees wear masks while at work, as stated by the Equal Employment Opportunity Commission (EEOC). Explain that cloth face coverings are intended to prevent wearers who have COVID-19 without knowing it (i.e., those who are asymptomatic or pre-symptomatic) from spreading potentially infectious respiratory droplets to others. In addition, inform them that the employer is required by the General Duty Clause of the federal Occupational Safety and Health Act (OSH Act) and regulated by OSHA to provide a safe and healthy workplace. As a result, the employer must take measures to protect their employees from recognized hazards such as COVID-19.
Notice is critical any time an employer implements a new workplace policy or makes changes to an existing one. If the employer had not done so already, provide notice to the employee that masks must be work at the workplace.
An employer may choose a variety of ways to provide notice to employees. For example, distribute a letter or email to each employee setting forth the following information:
- Requirement for employees to wear masks;
- Reason(s) why a mask is required (e.g., state or local mandate, policy to reduce spread of respiratory droplets);
- The need for continued social distancing at work;
- Contact information to use when an employee has questions or concerns; and
- Consequences for not complying with the mask requirements.
Consider having employees acknowledge that they have received the letter. Also, post a notice on the employer's website and/or intranet, if it has one.
Employers are also strongly urged to post conspicuous signs or other types of notices at all entrances to the workplace as well as in common areas (e.g., break rooms, cafeterias). Point the employee to the signs around the workplace at this point. Signage serves as a regular reminder to employees of the mask requirement and the importance of wearing one during the public health emergency.
Ensure that the employee feels comfortable and empowered in knowing how to properly wear, dispose of and launder their mask. For instance, consider providing in-person instruction so everyone is trained on its proper use and, importantly, has the opportunity to raise any questions or concerns during that time. Whether it be via letter or training, remind employees that a cloth face covering (e.g., mask) should:
- Cover an individual's mouth and nose;
- Fit snugly but comfortably against the side of the face;
- Be secured with ties or ear loops;
- Include multiple layers of fabric;
- Allow for breathing without restriction; and
- Be able to be laundered and machine-dried without damage or change to its shape.
In addition, be consistent with applying the mask requirement across all worksites, among all employees. An inconsistent approach may lead some employees to believe that mask wearing is optional or simply not necessary. It may also cause unease and fear among those who do understand that a mask protects against the transmission of COVID-19.
Keep in mind that masks and personal protective equipment (PPE) are required to be worn for certain job positions and in several industries. In these cases, employers will have to ensure their employees comply and wear a mask at work. However, there are industries where mask wearing is dangerous and poses a separate safety hazard. See Step 4. OSHA has issued interim guidance for several specific industries (e.g., manufacturing) that touch upon various issues, including PPE and other controls to reduce potential exposure to COVID-19. Consult industry-specific guidance and regulations on mask wearing for additional information.
Step 2: Remind the Employee of the Importance of Mask Wearing
For many, a sense of "fatigue" may set in after a period of wearing a mask and they may become careless in its use (or nonuse). Remind the employee why the wearing of a mask is important during this pandemic and how it may reduce potential spread to others.
However, equally as important, each employee should feel a stake in protecting their fellow employees as well as their loved ones at home. Remind the employee of the role they play in keeping their workplace and others they interact with safe from the potential spread of the virus. Reducing exposure to COVID-19 is a shared responsibility during this pandemic.
Step 3: Have an Open Dialogue with the Employee
Ask questions aimed at determining the nature of the employee's refusal to wearing a mask and listen. Be calm and respectful in order to understand their objections. It may be as simple as acknowledging their objections or concerns and explaining why a mask is required to be worn.
Also, the conversation may uncover issues that may be easily resolved. For example, the employee may not have a mask or may not be able to afford a proper-fitting mask. In this case, pay for and provide the employee with one. It is also a prudent idea to always have a supply of masks on hand so that they are readily available to those who may not have one or simply left one at home.
In some cases, this may not be a pleasant conversation; it may turn hostile. It is important not to engage in bullying, name-calling or other personal affronts. If all attempts to deescalate the situation fails and the employer believes the situation may turn violent, contact local law enforcement. See Step 8. Not only does an employer have a right to have a mask wearing policy but it also has the right expel someone from its worksite.
Step 4: Consider Concerns Regarding Possible Safety Hazards
An employee may object over wearing a mask because of a concern that it creates an occupational safety hazard. According to the CDC, a cloth face covering should not be worn if its use creates a new risk that exceeds its benefit in reducing the spread of COVID-19.
For instance, an employee may refuse to wear a mask because it may obstruct their vision or steam up their glasses or safety googles. This may be a significant safety issue if the employee performs safety-sensitive tasks, e.g., operating a forklift or certain machinery.
Also, there exists a risk of face masks, bandanas or other type of face coverings getting entangled in machinery or any moving parts, which may result in serious injury to employees. An employee who operates machinery may, therefore, object to wearing any type of face covering for fear that it may get snagged by machinery.
In instances where an employee does raise such a safety concern, explore other alternatives to a mask. OSHA, for example, suggests, in cases where the employee cannot tolerate wearing a cloth face covering, having the employee use a face shield instead. However, if used, OSHA states that the face shield should cover the entire front and sides of the face and extend below the chin.
The bottom line is that if a mask poses a safety hazard, an employee may refuse to wear one. Wearing a mask in such a risky situation may violate OSHA safety regulations, so tread carefully in these situations and try to come to a constructive and safe resolution.
Step 5: Address Reasonable Accommodation Issues
An employer may be faced with an employee refusing to wear a mask because they either have a disability and need a reasonable accommodation under the Americans with Disabilities Act (ADA) or religious accommodation under Title VII of the Civil Rights Act of 1964 (Title VII).
According to the EEOC guidance on EEO laws, including the ADA, while an employer may require an employee to wear a mask, they must consider providing modified or alternative protective gear (absent undue hardship) if a disability (e.g., asthma or chronic obstructive pulmonary disease) exists. If an employee with a disability requests a reasonable accommodation under the ADA for alternative modified protective gear (e.g., face masks for interpreters or others who communicate with an employee who lip reads), the employer needs to engage in the interactive process with the employee. During this process, ask questions and request information, such as medical documentation if necessary, to determine whether the employee's disability necessitates an accommodation.
It is also likely that an employee may object to wearing a mask because it may exacerbate their mental health condition (e.g., anxiety disorder). In this case, an employer must engage in the same process as they would for another type of disability.
If it is determined that the employee does need a reasonable accommodation, offer a reasonable alternative, provided there is no undue hardship on the operation of the business.
Reasonable accommodations should be discussed and considered on a case-by-case basis. Accommodations may include measures such:
- Telework, if possible;
- Flexible scheduling to minimize contact with others;
- Breaks to receive fresh air;
- Changes to the work environment such as plexiglass, tables or other barriers to place distance between an employee with a disability and coworkers/the public;
- Increasing the space between an employee with a disability and others;
- Eliminating, substituting or temporarily restructuring particular marginal functions and job duties;
- Temporary transfer to a different position; or
- Moving the location of where an employee performs work.
An employer should assess on a case-by-case basis whether a reasonable accommodation poses an undue hardship. In conducting that assessment, consider several factors, including:
- The nature and net cost of the accommodation, including consideration of outside funding;
- The overall financial resources of the facility or facilities at issue;
- The number of individuals employed at the facility at issue; and
- The effect on expenses and resources;
Note that it is possible that an accommodation that would not have posed an undue hardship prior to the COVID-19 pandemic may pose one now. In assessing undue hardship, the following may be relevant considerations:
- The employer's loss of income due to the pandemic;
- The amount of discretionary funds available at this time when considering the employer's other expenses; and
- The expected date that current restrictions on an employer's operations will be lifted or new restrictions added or substituted.
If a proposed accommodation does result in an undue hardship, an employer is not required to provide it. However, it must consider other accommodations that do not pose such a hardship.
Similarly, engage in the same process for an employee who objects to wearing a mask and requests a religious accommodation under Title VII, such as a modified face covering due to religious garb. Note that the consideration of whether a requested accommodation poses an undue hardship is different under Title VII and the ADA. With respect to a religious accommodation, an employer is not obligated to provide an accommodation that results in more than a de minimis burden, either economic or non-economic. This means that an undue hardship may exist if the requested accommodation is costly, compromises workplace safety, decreases workplace efficiency, infringes on the rights of other employees or requires other employees to do more than their share of potentially hazardous or burdensome work.
Keep in mind that these conversations are inherently sensitive in nature, so consider having them in private in order to put the employee at ease. Work with the employee to determine an accommodation that is reasonable as well as safe and effective in reducing the transmission of the virus.
These discussions should be ongoing as the situation may evolve. Importantly, remember to document each step of the interactive process in order to create a record and guard against any possible failure-to-accommodate claims. Keep any medical information in a separate file from the employee's personnel file. Also, ensure individuals who have the responsibility to receive these accommodation requests are trained to know how to handle them and to recognize the laws that may apply depending on the basis of the request (e.g., disability, religion).
Note again that several federal laws, such as the OSH Act, may require employees working in certain jobs, industries or positions to wear particular items of protective gear, including masks.
Step 6: Respond to Socially or Politically Driven Objections
The wearing of a mask has turned into a social and political statement during this health crisis, so it is likely an employer may face an employee who refuses to wear one due to their stance on the issue. While any talk of political or social issues at work is best avoided, an employer must face this discussion head on and in a tactful and respectful manner.
First, remember that the mask wearing policy is in place for a reason - whether it be mandated by a government order or by the employer itself for the safety and health of the employees. As addressed above, explain why there is a mask policy with objective and science-backed facts. Do not get personal or be dragged into a political debate. Be as factual as possible.
Second, private employees have limited First Amendment rights in the workplace and their freedom of speech may be limited. Therefore, the employee generally does not have the right to engage in a political discourse on employer property. Note, however, that some states do explicitly protect political expression.
It is likely that tensions will be flying high. Limit the discussion to the employee's noncompliance with a workplace policy. Do not be baited into criticizing the employee's behavior, demeanor or social or political opinions. Also, do not share personal opinions; be objective and factual.
Importantly, do not open the discussion to other employees. That may result in a very volatile situation which may lead to other employees who may share a similar opinion opting to not wear their masks either. Attempt to have the conversation in private or with a supervisor or manager if there is a chance things may turn hostile.
Also, "mask bullying" may arise in the workforce as a result of the current politicized environment. An employee(s) may look to garner strength and popularity over others by criticizing those who do wear a mask in order to make a political or social statement. This type of bullying, as with any other, has a significant likelihood to negatively affect morale, compliance and the work environment in general.
Step 7: Take Action
The fact is that employers have the right to require that masks be worn in their workplace; in jurisdictions mandating masks, they have the legal obligation to do so. That being said, as addressed above, actions taken in response to an employee's refusal to wear a mask depend on the reasons presented.
For instance, for those who do need an accommodation (disability-related or religious), engage in the interactive process and provide a reasonable accommodation, as appropriate. However, if an employee refuses to wear a mask for a reason not due to a protected characteristic (e.g., disability), then the employer has the right to treat the noncompliance as any other type of insubordination.
Whether the employee refuses to wear a mask because they claim it is uncomfortable or they are taking a political stand, the employer may discipline or terminate the employee. The fact that disciplinary measures could and will be taken against an employee who violates a mask policy should be communicated to all employees at the time the policy is implemented. This will put everyone on notice that such noncompliance will not be tolerated.
However, the discipline imposed may vary based on the circumstances. For example, if the employee fails to wear a mask because of mere negligence (e.g., mask forgotten at home), consider providing the employee with verbal coaching and have a documented conversation explaining why the wearing of a mask is important. See Step 2 and Step 3. Inform the employee that further noncompliance with the mask policy may result in disciplinary action, up to and including termination.
On the other hand, if the employee's refusal to wear a mask is intentional, reoccurring, knowing and/or willful, address the situation immediately to respond to the risk to the health and safety of the workforce and those at home. Consider imposing progressive discipline by issuing a written warning first.
If it is determined that the employee's actions contribute to an unsafe workplace, consider sending the employee home until the appropriate discipline is determined or the employee agrees to comply with the mask policy.
Determine the level of discipline based on the frequency of the employee's failure/refusal to wear a mask and other relevant underlying factors. Any documented conversations or warnings should explicitly state to the employee that the employer expects full compliance with all health and safety standards. Any continued refusal to adhere to the mask requirement are to be considered an egregious violation which may result in immediate disciplinary action, up to and including termination.
Regardless of what disciplinary measure is taken, be objective. Make it about noncompliance, a workplace policy or state/local mandate; do not make it personal, especially for mask refusal due to political or social reasons. For employers with unionized employees, they may need to review the collective bargaining agreement before imposing disciplinary action.
It is also important that a mask policy be enforced consistently and not in a discriminatory manner. An inconsistent or lax approach will only lead to negativity among employees and a sense that the wearing of a mask is optional or unnecessary. Again, discipline issued for noncompliance of a mask policy should be treated as any other type of noncompliance.
Step 8: Be Prepared for Violent Confrontations
Unfortunately, there are reported instances of confrontations with a nonconforming employee turning into a hostile and violent encounter. As recommended by OSHA, an employer should already have a workplace violence prevention policy that provides employees with an understanding that violence will not be tolerated in the workplace, as well as the steps to take when faced with a violent encounter (e.g., contacting law enforcement). In light of the current climate, consider including COVID-19 related confrontations, including physical attacks, in the workplace violence plan.
According to CDC guidance on limiting workplace violence associated with COVID-19 prevention policies (e.g., mask wearing requirements, social distancing), workplace violence includes various types such as:
- Threats (verbal, written or physical expressions that could reasonably be interpreted as intending to cause harm);
- Verbal (e.g., yelling, swearing, bullying); and
- Physical (e.g., hitting, kicking, grabbing, pushing).
The employer and employees should be able to recognize verbal cues (e.g., swearing or talking loudly) and nonverbal cues (e.g., clenched fists and fixed stare) that may be warning signs of potential violence. Warning signs along with ways to respond to threatening, potentially violent and violent situations should be addressed in training, as recommended by the CDC.
In the event an employer believes the employee may become aggressive and possibly violent during a confrontation, remain calm and attempt to deescalate the situation. Give the employee space, make sure there are other people in the area and do not touch or try to forcibly remove the employee from the worksite. Do contact law enforcement (discreetly, if possible) or direct someone else to do so. To this point, employees should be informed on when and who to contact for assistance in these types of situations.
When law enforcement does arrive, calmly and objectively provide them with details about what has/is occurring. Refrain from turning this into a personal attack on the employee. Follow the law enforcement's lead here and fully cooperate with them.
Should the employee be arrested or otherwise adversely affected by law enforcement's involvement, consider taking security precautions in case the employee retaliates in some fashion. Put managers on notice and remain in communication with law enforcement so that they are aware of any concerns. Also, remind employees to direct any fears to their managers and contact law enforcement with any immediate concerns.