As more Americans are vaccinated and state mask mandates are dropped, can my employer forbid me from wearing a mask while at work?
As long as the Centers for Disease Control and Prevention recommends that individuals wear masks and social distance at work and elsewhere, you are on firm legal footing, workplace experts say. State or local mask mandates and executive orders offer even more protection. But some states never required masks and others have lifted their mandates. As we enter future phases of the pandemic, there is some ambiguity about whether you will have a legal right to wear a mask at work. People with disabilities have better protections in this situation than those without a documented disability.
“With the way that mask-wearing got politicized, we’re going to see a lot of this” as some employers try to telegraph a message that everything has returned to normal, said Wendy Strobel Gower, the program director of disability, inclusion and accommodation at Cornell University’s Yang-Tan Institute on Employment and Disability.
“It comes down to: Does your company have an obligation to follow the guidance of federal and also state and local authorities?” Ms. Gower said.
This month, the Occupational Safety and Health Administration cited the owner of a Massachusetts tax-preparation firm for prohibiting her employees and customers from wearing masks in the office. She was fined more than $136,000 for “willfully failing to develop and implement measures to prevent the spread of the coronavirus,” according to a Labor Department news release. Massachusetts has an executive order in place requiring masks in public locations.
At this phase of the pandemic, the expectations for workers and employers are fairly clear, said Jim Paretti, an attorney with employment law firm Littler Mendelson.
The CDC says managers and business owners should “ensure all employees wear masks in accordance with CDC and OSHA guidance as well as any state or local requirements.”
Although this is guidance, not a regulation, employers would be violating it “at their own peril, even if you’re still in the realm of just recommendations,” Mr. Paretti said. “If the weight of conventional wisdom says this is what employees should be doing, unless and until we get to the place where the CDC says we’ve achieved enough vaccinations that masks aren’t worth maintaining, I’d look at it as a potential liability issue.”
Things get much more ambiguous when we move out of pandemic territory, experts say. The World Health Organization declared the Covid-19 crisis a pandemic in March 2020, and the CDC uses the same language in its guidance. When those entities see enough evidence to take off the pandemic label, individuals and employers will have more discretion about how to handle masks, Ms. Gower and Mr. Paretti said.
If someone wants to wear a mask, “I think a lot of employers will be like, ‘whatever makes you happy,’ because they don’t want people to get sick either,” says Ms. Gower. But once the pandemic guidance is lifted, “they may be able to say ‘no, you can’t.’ ”
At that point, the only people whose right to wear a mask may supersede their employer’s right to dictate workplace standards, dress codes and behavior are those who have a disability that makes them more susceptible to serious illness from an infection like Covid-19. They can request accommodations under the Americans with Disabilities Act, Ms. Gower said. “But there’s no protection if you don’t have a disability,” she added. “You’re not guaranteed an accommodation unless you have a disability.”
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