This is a popular question these days, so let me lay out the law as I understand it.
Actually, the basic law is pretty straightforward. Mostly what I will do is quote from the federal government’s EEOC (Equal Employment Opportunity Commission) web site which deals with employment discrimination issues. And yes, the ADA (Americans with Disabilities Act) does come into play in the analysis.
Here is the URL for the EEOC document I am quoting from:
https://www.eeoc.gov/laws/guidance/pandemic-preparedness-workplace-and-americans-disabilities-act. It contains much useful information about employment issues and has been updated to reflect the present pandemic.
Here is the answer in short:
“• 12. During a pandemic, may an employer require its employees to wear personal protective equipment (e.g., face masks, gloves, or gowns) designed to reduce the transmission of pandemic infection?
Yes. An employer may require employees to wear personal protective equipment during a pandemic. However, where an employee with a disability needs a related reasonable accommodation under the ADA (e.g., non-latex gloves, or gowns designed for individuals who use wheelchairs), the employer should provide these, absent undue hardship.
• C. REASONABLE ACCOMMODATION
A “reasonable accommodation” is a change in the work environment that allows an individual with a disability to have an equal opportunity to apply for a job, perform a job’s essential functions, or enjoy equal benefits and privileges of employment.(23)(footnotes ommitted)
An accommodation poses an “undue hardship” if it results in significant difficulty or expense for the employer, taking into account the nature and cost of the accommodation, the resources available to the employer, and the operation of the employer’s business.(24) If a particular accommodation would result in an undue hardship, an employer is not required to provide it but still must consider other accommodations that do not pose an undue hardship.(25)
Generally, the ADA requires employers to provide reasonable accommodations for known limitations of applicants and employees with disabilities.(26)”
Does that mean I don’t have to wear a mask if I can show it could/would be harmful to my health?
Not really, because a “reasonable accommodation” would more likely be an unpaid leave or working from home. Perhaps in the right setting, working in complete isolation in an office might be a public health safe reasonable accommodation, but even if so, I think it would likely create an “undue hardship” for the employer, for a variety of reasons, including the morale/fear/resentment of the other workers. But still, I suppose it might still be possible depending on the kind of work you do and the specifics of the work environment.
Be advised that if you seek to obtain a “reasonable accommodation,” it will involve a back and forth process with your employer in which among other things, you will have to prove your disability under the ADA, as well as provide other pertinent information. (And no, you can’t both claim a medical disability/request a reasonable accommodation and assert HIPAA protection for the health information which is the basis of the accommodation.)
But why couldn’t I just not wear a mask in the office?
In a pandemic, not wearing the required PPE would be (and is) considered a “direct threat” which is defined as “a significant risk of substantial harm to the health or safety of the individual or others that cannot be eliminated or reduced by reasonable accommodation.”(20) If an individual with a disability poses a direct threat despite reasonable accommodation, he or she is not protected by the nondiscrimination provisions of the ADA.”
Meaning they don’t have to let you work without a mask despite your medical inability to wear one.
So, while I suppose some employers might go for it, in these time of the politicalization of mask wearing, I think that if an employer has an employee mask requirement, most likely it will not make an exception to allow a person (or a small group of the medically unable) not to wear one and work in an office where everyone else is masked.
What About my Constitutional right not to wear a mask?
Sorry, there is no such animal, not now, nor will there ever be IMO. Your constitutional rights stop when you endanger others. Governments have to right to take measure to protect the public under its police powers.
Events of yesterday and today (July 29 and 30) back this up. That idiot Texas Congressman who was flaunting his refusal to wear a mask in Congress and in recent televised committee hearings tested positive. Fellow congressfolk are outraged, which has prompted the Speaker to impose a mask order. We will see if the Texas Congressman or any other challenges it in Court, but I sort of doubt it will be challenged. If Congress can order its members to wear a mask, what chance do you think you would have in convincing a court that the Constitution gives you a right not to wear one? And the irony of course is that I think most court houses have mask requirements, so you would probably be making the argument to a judge and her staff who are all wearing a mask (or hearing the case via zoom). Good luck with that!
But I don’t think masks stop the spread of the virus and I have read on the internet that there are other doctors who agree with me, and isn’t that what those doctors who stood in front of the Supreme Court said?
Yes, they did say it, and other physicians have also challenged whether mask wearing really helps, but the majority and accepted opinion is that masks helps. In this game, the majority opinion prevails, and so the courts will find.
But still, why can’t I go to court and ask it allow me to not to wear a mask at my job because of my medical condition?
Well, you can file a lawsuit about just about anything, but the law is pretty clear under the ADA, and you’d lose (even assuming you had a ADA recognized disability. In fairness, I don’t think there are any appellate court decisions yet on mask wearing and the ADA. I am sure there will be (or maybe ever are already) some cases, but I feel confident that no court will find that an employee has a constitutional right not to wear a mask if an employer requires marks during this pandemic.
So, to ask the basic question in another way:
If I have a doctor’s letter saying that wearing a mask is dangerous for me, would that force my employer to allow me to work without a mask?
I think the answer is no.
Rick Jaffe, Esq.