Does requiring a mask or face covering at work violate the ADA?
In the midst of the COVID-19 pandemic, employers and their employees are having to adapt quickly, and have the ability to adapt quickly again, without necessarily having a clear answer on what is best for the situation. Nowhere is this more evident than in the issue of face masks; some places require them, while others ‘recommend’ them, and in some cases, face mask requirements are being seen as unfair, inappropriate, or even illegal. If this may cause issues for you, it is crucial to understand exactly what the Americans With Disabilities Act (ADA) actually does, and what it does not, so that if you experience discrimination, you can identify it properly.
Customers Required To Mask Up
On April 12, 2020, Gov. Cuomo issued an executive order requiring the use of face masks in any “essential business or entity” where employees have direct contact with members of the public, and underlined the importance of it by requiring businesses to issue face masks at their own expense if necessary. While this duty was only imposed on ‘essential’ businesses, three days later the governor issued another executive order requiring masks be worn by everyone in public, citing a need to curb the virus’s spread.
There are exceptions for those who cannot wear a mask due to a medical condition, but some stores are simply refusing service to those who come in without any covering. Private businesses have a right to bar customers who do not comply with masking policies, but the question of whether they can act against their own employees who may not wear masks is a different question entirely – and it is one that is still evolving as of this writing. That said, there are certain rules we can infer from existing jurisprudence.
Discriminatory Or Not?
The ADA applies to all employers with 15 or more employees, as well as employment agencies and labor organizations. It bars any and all discrimination against disabled people, though “disabled” has a very specific definition under the Act. If you have a disability (as per the ADA) and you are unable to wear a mask, your employer cannot make you wear one, but in the interests of public health, you are urged to collectively reach an alternative, such as removing you from any customer-facing position for the duration of the pandemic. The ADA requires employers to make reasonable accommodations for employees, but leaving someone with no mask on the front lines of a pandemic can hardly be called “reasonable.”
If someone does not have a disability, they cannot claim any kind of protection under the ADA when it comes to wearing a mask at work. There are non-medical reasons that someone may not wish to wear a face covering – one of the most sadly common, for example, is that people of color have expressed concerns that they might be treated like criminals – and the validity of such reasons needs to be evaluated in-house. However, these have little to do with the ADA, and are much better handled as a human resources issue. Someone who simply does not wish to wear a mask has no legal protections whatsoever.
Call A New York City-Based Employment Discrimination Attorney
Trying to navigate employees’ rights during a global pandemic is a challenge for most employers, but they must be balanced against public health needs. If you believe you are being discriminated against based on disability, or forced to wear a mask despite your disability, consulting a New York City employment discrimination lawyer at Mansell Law, LLC is a good first step in deciding how you want to approach the problem. Contact our offices today via website or telephone to speak to an attorney.
Resources:
msn.com/en-us/news/us/giant-eagle-says-lawsuit-over-its-mask-policy-is-e2-80-98all-wrong-e2-80-99/ar-BB16PuF6
governor.ny.gov/news/no-20216-continuing-temporary-suspension-and-modification-laws-relating-disaster-emergency
