What to Do If Employees Say They Can’t Wear Masks

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Coronavirus (COVID-19) documentation employees healthcare HR Management & Compliance medical condition

In light of many state regulations requiring face masks in most indoor work settings, many employers are wondering how to deal with employees who say they cannot wear a mask because of a medical condition or religious belief. Before responding, you should understand your responsibilities under the various discrimination and employee leave laws.

Background

As an example, Minnesota Governor Tim Walz recently announced an Executive Order that says employees generally must wear a mask while working indoors (subject to other additions and exceptions). The order, however, states:

Businesses must provide accommodations to persons, including their workers and customers, who state they have a medical condition, mental health condition, or disability that makes it unreasonable for the person to maintain a face covering.

For employers in Minnesota, or states with similar mandates in place, be sure to follow the requirements of other applicable laws with respect to documentation of a medical condition.

Family and Medical Leave Act

If an employee says her medical condition makes it difficult to wear a face covering, the first issue to address is whether her inability to work with a mask constitutes a qualifying condition under the Family and Medical Leave Act (FMLA).

The FMLA permits eligible employees to take up to 12 weeks of job-protected leave in a 12-month period if they are incapacitated by a serious health condition. It seems likely the typical respiratory or cardiac ailments that interfere with mask-wearing would meet this standard.

Therefore, if the employee is otherwise eligible for FMLA (being employed for at least 1 year and working at least 1,250 hours in the last year), you should first require her to get FMLA certification from her healthcare provider. If the certification indicates the existence of a serious health condition, then you should provide her with FMLA leave for up to 12 weeks (less any FMLA time previously taken in the year).

Americans with Disabilities Act

If the employee claiming inability to work with a mask isn’t eligible for FMLA leave or has used up her eligibility, she may still be entitled to reasonable accommodation under the Americans with Disabilities Act (ADA) and its state law counterpart, the Minnesota Human Rights Act (MHRA), for examply. You should therefore initiate an interactive process designed to determine whether she actually needs an accommodation, and if so, whether any such accommodation is both possible and reasonable.

The first step is to request documentation from the employee’s healthcare provider to verify the medical condition (1) exists and (2) impairs her ability to wear a face covering in accordance with the law. While awaiting this documentation, don’t allow her to continue coming to the work site. Instead, consider placing her on a leave, allowing telework if possible, or providing some other temporary accommodation until the matter is resolved.

Naturally, if no such documentation is provided, no accommodation is needed, and the employee should be directed to return to her regular assignment. If proper documentation is submitted, you should consider the range of possible accommodations, such as providing a different sort of face covering (e.g., face shield), temporarily reassigning her to a vacant position that doesn’t require wearing a face covering (e.g., one that works outside), allowing her to telework, isolating her, or providing other responsive job modifications.

If no accommodation is possible, or if the possible accommodations just aren’t reasonable under the particular circumstances, you should place the employee on leave until the face mask order is rescinded or her medical condition improves to permit a mask to be worn. Employees who have been on FMLA leave for the same issue will simply remain on leave but will no longer be subject to the Act’s protections.

Title VII

Although the order doesn’t mention a religious exemption for not wearing a mask, some employees have raised religious objections. Both Title VII and the MHRA, for example, provide that religious beliefs must be accorded reasonable accommodation. Therefore, if an employee refuses to wear a mask due to religious issues, you must engage in an interactive process to assess the viability of the requested accommodation.

It’s critical to note, however, that an employer’s duty to accommodate religious beliefs isn’t nearly as extensive as the similar requirement under the ADA. The courts have made it clear requests for religious accommodation may be refused if they present anything other than a minimal hardship for the employer.

Therefore, you need not consider substantial changes to the employee’s job or other changes requiring more than a negligible expense. Instead, you could consider a job swap with another employee working in an area that doesn’t require masks, or perhaps an unpaid leave of absence for the duration of the mask requirement provided that replacing the employee doesn’t present any real hardship.

Bottom Line

Employees who are unable to wear face coverings because of a disability or their religious beliefs may be entitled to job modifications or other accommodations under the ADA and Title VII. Be sure to follow a reasonable interactive process to find out more about the underlying basis for the request and the possible accommodation options that are presented.

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