How to Handle an Employee Who Refuses to Wear a Mask or is Not Wearing It Properly
Has your business been called out on social media with pictures of your employee who refuses to wear a mask? How should employers handle this? What if the employee claims he has a medical condition?Whether your employees are required to wear a mask because of a public health order, you’re satisfying your employer OSHA obligations to protect employees against known workplace risks – which COVID-19 undoubtedly is – your business requires its employees to wear a mask. You’re simply following the advice from infectious disease specialists worldwide, but you have an employee refuses to wear a mask or perhaps he wears his mask without covering both his nose and mouth, violating the workplace policy. ?
Begin by politely reminding the employee masks are required in the workplace and ask the employee to properly wear one. If the employee continues to violate the rules, speak with him/her and have a conversation about the issue. Inform the employee OSHA has recognized COVID-19 as a risk in the workplace and could cause death or serious injury, employers have a duty to protect employees from such risks, and one mitigation measure the Company is taking is requiring masks, along with ______ (list other measures you’re taking, such as physical barriers, increased disinfection of high-touch surfaces, staggered shifts/lunches/breaks, etc.). If applicable, inform the employee you are required to follow state/local public health orders, which mandate masks be worn by all employees.
If the employee has a medical condition, he will have probably already alerted you; however if he hasn’t, after reviewing the workplace rules around masks, ask the employee if there is any reason he cannot wear a mask covering his nose and mouth. Your next steps depend on the employee’s response:
- If the employee says no, there is nothing preventing him from following company policy, then inform him he is expected to comply with all company policies, including masks, and any future violations will be dealt with disciplinary action up to and including termination. Note your conversation with the employee in his personnel file, including his statement there was no reason he cannot comply with the policy.
- If the employee says yes, it’s a violation of his constitutional rights, his freedom of personal choice, his personal opinion masks don’t work, or anything similar, inform the employee the workplace policy does not violate constitutional rights, and you respect his personal views, but while at work he needs to follow company policy and public health orders. Make it clear he will be expected to wear a mask covering his nose and mouth; if he does not, he will be subject to disciplinary action, up to and including termination. Note your conversation with the employee in his personnel file, including the reason he does not want to comply with the policy and your response.
- If the employee says it’s hard to breath in a mask, it makes his asthma flare up, he is claustrophobic, he gets dizzy, or anything similar indicating the employee may have a medical condition making it difficult to wear a mask, then you have the obligation to engage in the interactive process under the Americans With Disabilities Act. This is to determine if the employee does have such a medical condition and if there is a reasonable accommodation provided.
If the employee indicates he has a medical condition, let him know you want to engage in the interactive process with him to determine whether there is a reasonable accommodation enabling him to perform the essential functions of his position. A possible accommodation in this situation could be wearing a face shield as opposed to a face mask. Let the employee know the company is prepared to accommodate him, but to do that, you need more information from his doctor. Note if the employee has an obvious disability making it difficult to wear a mask, then you should not require the employee to obtain medical certification of the condition absent a compelling reason.
During the meeting, you will provide the employee with the appropriate forms linked in the memorandum below, inform the employee he will need to complete the Authorization to Release Medical Information and take the form to his doctor, along with the GINA Notice and job description. He will need his doctor to complete the Physician/Health Care Provider Form. Give the employee a reasonable amount of time to return the document. Next, make it clear to the employee the failure to provide medical certification supporting his need for an accommodation will mean he is expected to wear a mask covering his nose and mouth in the workplace, and failure to do so will subject him to disciplinary action, up to and including termination.
Finally, provide the employee with a memorandum documenting your conversation:
<<<Sample Documentation Below>>>
REQUEST FOR REASONABLE ACCOMMODATION
TO: (Insert Employee Name)
FROM: (Insert Manager/HR Representative Name)
DATE: (Insert Date of Memo)
Dear (Insert Employee Name), The purpose of this memo is a follow-up to our meeting on (insert date) where we reviewed the company’s requirement to wear a face mask in the workplace at all times.
As we discussed, the General Duty Clause, Section 5(a)(1) of the Occupational Safety and Health Act (OSHA) of 1970, 29 USC 654(a)(1), requires employers to furnish to each worker “employment and a place of employment, which are free from recognized hazards that are causing or are likely to cause death or serious physical harm.” The face mask requirement has been established to keep you, other employees, and the public safe from illness and injury and to reduce the exposure of transmission of COVID-19 during the pandemic (insert if applicable: which is also required by local ordinance/state public health order).
During our meeting, you indicated you have a serious medical condition preventing you from wearing a face mask.
I advised you the Company wished to engage in the interactive process with you to determine whether there was a reasonable accommodation enabling you to perform the essential functions of your position. I also told you the Company was prepared to accommodate you and I needed more information from your physician.
I then provided you with copies of the following documents (copies of which are attached hereto): ·
- Authorization to Release Medical Information
- Physician/Health Care Provider Form
- GINA Notice, and,
- Your job description.
As we discussed during the meeting, please complete the enclosed Authorization to Release Medical Information and take the form to your doctor, along with the Physician/Health Care Provider Form, GINA Notice, and your job description. Have your doctor review the job description and complete the Physician/Health Care Provider Form. Return the completed form to me as soon as possible but no later than (insert date).
Keep in mind, if you fail to provide medical certification supporting your need for accommodations, you will be expected to wear a face mask covering your nose and mouth at all times in the workplace. Your failure to do so will subject you to disciplinary action up to and including termination.
If you have questions or concerns, please contact me at (phone).
<<<End Sample Documentation>>>
If the employee fails to return the required documentation justifying a reasonable accommodation, converse with the employee again, and politely follow up with why he hasn’t returned the form. Remind him the form is necessary to support the request for an accommodation. Give him additional time to return the form and document your conversation with a memorandum to the employee. If he still employee who refuses to wear a mask and fails to provide the medical certification, have a final meeting reviewing the workplace policy, his request for a reasonable accommodation, his failure to engage in the interactive process by not providing the required documentation to support his request, and your expectation going forward is that he needs to comply with company policy regarding masks or be subject to discipline up to and including termination. Document this meeting with another memorandum to the employee.
Of course, every situation is different, and employers need to be flexible when engaging in the interactive process, particularly during this COVID-19 era. Please contact us for more information regarding these questions.