Lately, there’s been a lot of talk about President Biden’s new vaccine requirements for federal workers and many private employers. Given the effectiveness of coronavirus vaccines, it’s understandable that mandating their use is a logical next step in fighting the coronavirus pandemic.
But given the difficulty many employers face in getting their employees vaccinated, it’s also understandable that they’d prefer to use a different approach to fighting the pandemic. One such option includes requiring their employees to wear a mask at work. But can they do that?
The Short Answer
Yes. As a general rule, an employer may require its employees to wear a face mask or other personal protective equipment (PPE) as a condition of continued employment. Under a variety of laws, including the Occupational Safety and Health Act of 1970 (OSH Act), employers have broad leeway in formulating rules and policies to keep their workplaces safe.
So if an employer believes the best way to protect workers against the coronavirus is having them wear masks, then the employer can make that a requirement. But there are two major exemptions employees could be eligible for.
The Religious Exemption
Under Title VII of the Civil Rights Act of 1964 (Title VII), a covered employer may not discriminate against an employee because of the employee’s religion. This includes forcing an employee to wear a mask if it’s against the employee’s religious beliefs.
To exercise this right, the employee must show that they have a sincerely held religious belief and that the religious accommodation they are requesting will not place undue hardship on the employer.
When it comes to sincerely held religious beliefs, courts will give a lot of deference to the employee. The religious belief need not be an official tenant of a religion or denomination or even widely held. But it may not be a pretext for a personal or political belief.
How a court determines if a belief is truly religious may depend on the facts uncovered during discovery during the pre-trial stages of litigation.
For example, imagine if the employee gets into a discussion on Facebook with a family member about masks. And the employee mentions how even though his pastor thinks mask mandates are in line with religious doctrines, the employee still won’t wear one because they think it’s an act from a tyrannical government.
If the employer uncovered this social media conversation during discovery, they’ll use it to show that the employee didn’t have a sincerely held religious belief regarding masks. Therefore, they weren’t entitled to a religious accommodation under Title VII.
As for undue hardship, this is something that will place more than a minimal burden on the employer. What qualifies as a minimal or major burden will depend on the requested accommodation, nature of the job and the work setting.
For instance, the employee can’t wear a mask, but they’re willing to take advantage of the employer’s universally available telecommuting program. So allowing the employee to work from home isn’t likely going to constitute an undue hardship on the employer.
But if the employee’s religious accommodation request involves completely changing their job duties or asking the employer to install a brand new HVAC system for the office, then a court will probably conclude these impose more than a minimal burden on the employer.
The Medical Exemption
An employer can’t require an employee to wear a mask if they have a disability that’s recognized by the Americans with Disabilities Act of 1990 (ADA) which prevents them from wearing a mask. In this case, the employee may be entitled to a reasonable accommodation as long as it doesn’t place an undue hardship on the employer.The ADA recognizes a disability as a medical condition that creates a physical or mental impairment on the employee which substantially limits a major life activity. Thanks to the ADA Amendment Act of 2008 (ADAAA), this definition should be broadly applied to maximize the number of employees receiving ADA protections.
If the medical condition is long-term and makes it difficult for the employee to do a major life activity (like eat, drink, walk, talk, breath, sleep or concentrate), then it will likely constitute an ADA-recognized disability. However, if the medical condition is short-term and has no long-term effect, it’s not an ADA-recognized disability.
The real trick is finding out what sort of accommodation the employee is entitled to. Keep in mind that this accommodation must be reasonable in light of the employer’s resources and the nature of the employee’s job.
An accommodation will place undue hardship on an employer if it requires significant expense or is very difficult to implement. Additionally, the ADA does not require the employer to alter the employee’s essential job duties as a form of reasonable accommodation.
Potential reasonable accommodations to a workplace mask mandate could include:
- Getting the coronavirus vaccine
- Socially isolating from other people within the workplace
- Remote work
- Unpaid leave
- Asking the employee to wear a different type of PPE, like a face shield
Summing It Up
The legal framework supporting an employer’s right to impose a mask mandate on its workers is essentially the same as the one that gives employers the right to have a vaccine mandate. This includes not just the employer’s right to make decisions to maintain a safe workplace, but also the employee’s right to medical or religious exemptions as long as they don’t place an undue burden on the employer.
