You Can Now Get Fired For Refusing To Wear A Mask At Work

Employers can mandate that employees have to wear face coverings, and those who don’t follow the rules could face termination with very little room for recourse. 

In fact, face coverings at work are one of the key components to many states’ reopening plans and since the CDC is recommending it, you can bet that shop owners who love to take their cues from government will make sure it is policy. 

The precaution of covering your face is a “term of employment” that, if broken, can justify discipline from an employer, according to Bloomberg Law. There are only limited reasons that could exempt an employee, including medical or religious reasons.

Katherine Dudley Helms, an Ogletree Deakins attorney who represents employers said: “In essence, they’re saying ‘I really don’t want to work here. That really is like someone coming in and saying ‘I don’t like your rules.’”

An employee would have to inform their employer about a respiratory illness or medical reason for not being able to wear a mask, in that case. That may trigger the Americans with Disabilities Act, which would accommodate the employee further. Those opposed to it for religious reasons would need to discuss accommodations with their employer in advance. 

“But all of these are limited exceptions to the employer’s basic right to devise and enforce nondiscriminatory work rules, including those pertaining to clothing,” Fordham University School of Law professor James Brudney said.

It’s the same type of law that protects employers who mandate that employees cover their tattoos, or adhere to a dress code. An employer that “even-handedly” enforces the rules should be in a good legal position to defend disciplining an employee.

Union representation won’t let workers skirt the rules either. Steven Bernstein, an attorney at the management-side firm Fisher & Phillips said: “The safer approach is to give the union a heads-up and communicate then, since there’s usually a common interest in health and safety. Having a union partner in that process can be valuable.”

There’s also no “restrictive of free speech” angle for employees to fall back on. Workers “who refuse to wear a face covering out of political conviction would still probably lose in court,” Mark Frost, who represented a New Jersey police officer who prevailed in a free speech dispute at the U.S. Supreme Court in 2016, said. 

Most employment in the U.S. is “at will”, meaning that employers can fire employees for any reason, as long as it doesn’t break the law.

But meanwhile, according to Katz, Marshall & Banks senior counsel Carolyn Wheeler, the concerns seem to be on the other side of the equation for now: she says she has seen more concern from employees worried about what their employer is doing to protect them.