“I want to come back to work, but I won’t wear a mask.” Some of you may have heard this from your employees. Your gut reaction may be, “well, then, you’re fired,” but you can’t do that immediately. If an employee makes such a statement, you first need to ask why. Here’s what you need to know.
The Americans with Disabilities Act Still Applies
You may have seen memes or tweets about asking why violating HIPAA or the 4th amendment.
— Jeremy Swanson (@JeremyJSwanson) July 22, 2020
None of this is true. HIPAA relates only to health care providers and insurance companies–and most companies are not subject to it. The 4th amendment is related to unreasonable searches and seizures. I’m not quite sure what the logic is here, but you may have heard it. What does apply is the Americans with Disabilities Act (ADA).
If an employee has a legitimate health concern, you need to treat it the same way you would treat any ADA concern–diabetes, a heart condition, autism, or anything else. You can provide your employee with ADA paperwork and have them take it to their doctor to fill out.
Some conditions that can make masks difficult for some include asthma, anxiety, or claustrophobia. This certainly isn’t an exhaustive list, and these conditions don’t guarantee an ADA accommodation. You must consider each request individually and rely on the doctor’s recommendations.
If there is a legitimate disability, then you must go through what is called the “interactive process.” The critical thing here is it’s a back and forth between the business and the employee to come to a solution. It does not have to be the solution that the employee suggests, but it does have to be reasonable for both people.
For example, a reasonable accommodation for someone who cannot wear a mask could be working from home, working in a separate office, physical barriers between the employee and other employees, or wearing a face shield. There may be situations where this is impossible and, therefore, not reasonable. In that case, a leave of absence may be a reasonable accommodation.
Don’t just immediately dismiss an employee’s request as crazy or rebellious. There are legitimate disability concerns about masks for some people. But, a valid reason will be backed up with the ADA paperwork.
When someone just doesn’t want to wear a mask
If you’ve eliminated any ADA concerns, and the employee still won’t comply, you have some options.
There’s no law prohibiting you from making accommodation just to be kind. But, if you allow Bob to wear a face shield to be nice, you’ll have to let every other similarly situated employee do the same.
If discussing the seriousness of Covid 19 and any relevant laws in your area, don’t turn the employee around, it’s time to terminate.
That may seem harsh, but it is a consequence. Without a doctor’s certification that they suffer from a condition that makes wearing a mask prohibitive, they are just ridiculous, and it’s time to show them the door.
You can be polite. You can tell them that they are free to re-apply when masks are no longer necessary, but it’s time to leave.