- Face masks are required in Illinois.
- Employers are required to provide reasonable accommodations to employees with disabilities recognized by the ADA.
- Accommodations regarding masks vary by situation, but the ADA is not a blanket protection against wearing a mask.
Can I Make My Employee Wear a Mask Under the ADA?
Public health requirements during the COVID-19 pandemic have caused contention for many businesses and individuals, few as much as being forced to wear a mask. Many people claim that wearing a face mask violates their rights. This leaves businesses facing concerns from all directions, such as:
- Can I require my employee to wear a mask? What if that employee has a disability?
- Are there alternatives that I have to offer? What is a reasonable accommodation?
- If my employee doesn’t wear a mask and people get sick, what happens?
As these questions and concerns pile up, government agencies provide advice but often leave grey areas that employers need to navigate. Here, our goal is to help employers by giving clear answers where they exist (which is almost nowhere), highlighting the grey areas, and offering our two cents on how to navigate them.
The Mask Rule
As of October 7, 2020, the CDC continues to recommend wearing a mask or equally protective face covering. Furthermore, Illinois requires individuals in the state to wear a mask whenever they can’t maintain a six-foot distance at all times (such as shopping at essential businesses, picking up food from the drive thru/curbside, etc.).
The Equal Employment Opportunity Commission (“EEOC”, responsible for enforcing the ADA) says employers can require employees to wear protective gear and says that employers should follow CDC guidelines.
So in response to “Can I require my employee to wear a mask?”, the answer is yes, according to all applicable government agencies. However, if the employee has a recognized disability under the ADA, the employer must provide reasonable accommodations (which include protective gear accommodations).
The ADA
“Disability” Defined
The Americans with Disabilities Act defines a disability “a physical or mental impairment that substantially limits one or more of the major life activities of such individual” (or a record of/being regarded as having the impairment). Though it would be useful, there is no specific all-encompassing list of disabilities covered under the ADA.
Reasonable Accommodations
According to Title I of the ADA, employers must provide reasonable accommodations for employees with disabilities. 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. Clearly, the definition of “reasonable accommodations” intersects with the pandemic in several ways. The EEOC addresses this in their Pandemic Preparedness Guidance, albeit rather cagily.
Finding the Right Accommodation
Providing reasonable accommodations is an interactive process. The employee will first need to request some sort of accommodation. Then, the employer and the employee can work together to figure out what the best accommodations would be that the employer can reasonably carry out without “undue hardship” (significant difficulty or expense) or a direct threat to the health or safety of others (refer again to the EEOC Pandemic Preparedness Guidance). When discussing accommodations with an employee, consider the job, the duties that need to be performed, the environment, and several other factors to reach a fair conclusion. The employer can require the employee to show that the accommodation would be effective at reducing the impact of the employee’s disability.
Masks & the ADA
Providing Accommodations
As we discuss above, the EEOC says employers can require employees to wear protective gear and says that employers should follow CDC guidelines. However, it also says that employees that ask for a reasonable accommodation under the ADA should be given the accommodation where it isn’t an undue hardship (examples: non-latex gloves, gowns designed for people in wheelchairs). Unfortunately, so far, the EEOC is largely silent on how to accommodate individuals that have issues wearing masks due to a disability, and acceptable accommodations to the mask requirement. However, the ADA is not a blanket protection against wearing a mask.
In general, employers only need to provide an accommodation if an employee requests the accommodation due to a disability. If an employee requests the accommodation, employers should consider whether it is an undue hardship. If the employer decides it is an undue hardship, they should work with the employee to come up with an alternative where feasible.
Undue Hardship in a Pandemic
During a pandemic, something that is not typically a big undertaking for a business might be more difficult and considered an “undue hardship”. Consider whether current circumstances create significant difficulty, based on the employer’s situation. On this, the EEOC provides a little bit of guidance.
For example:
- Is it more significantly difficult during the pandemic to conduct a needs assessment or to acquire certain items?
- Does it impact delivery? Does working from home (for employees that telework) create an extra level of difficulty in providing certain accommodations? (i.e. like getting supplies to an employee)
- Is it significantly more difficult to provide employees with temporary assignments or to readily hire temporary workers for specialized positions?
If a requested accommodation poses an undue hardship, employers and employees should work together to find an accommodation that the employer can provide.
Steps Employers Can Take
Sample Accommodations
No accommodations will work for all situations and employees. However, we have some example accommodations for employers and employees to discuss and consider:
- Give options for different face coverings
- Allow the employee to work from home
- Give masks breaks as needed
- Re-arrange the employee’s schedule to limit time around others (allowing for more mask breaks)
- Give the employee a private office/area to work in without the mask
- Adjusting work to require less physical activity (where breathing difficulty is a concern)
- Provide the employee with a fan to assist with heat issues
However, none of these are guaranteed to work. The most effective accommodations are ones that the employer and employee develop together. Also, employers do not needd to offer all of the above accommodations. For example, some jobs can’t be done from home.
What You Can Ask
If the disability is not obvious or already known, you are allowed to ask for documentation to determine whether the employee has a “disability” as defined by the ADA (a physical or mental impairment that substantially limits a major life activity, or a history of a substantially limiting impairment). Here too, the EEOC offers some general principles, if not outright answers.
You can also ask:
- How the disability creates a limitation,
- How the requested accommodation will effectively address the limitation,
- Whether another form of accommodation could effectively address the issue, and
- How a proposed accommodation will enable the employee to continue performing the “essential functions” of their position (the fundamental job duties)
Review Your Employment Policies
Look over your employment practices, adding “Disability Accommodations” to your employee handbook. We always recommend that employers regularly go through any contracts, memos, policies, handbooks, and other materials that they give to their employees regarding employment practices. Employment law is a constantly changing area, and the pandemic keeps piling on extra factors for employers to consider.
Establishing specific policies for disability accommodations can be particularly helpful. That way, you know that employees are going to the right place to request accommodations and you aren’t accidentally denying any reasonable accommodations. Employee handbooks can be a great place for policies like these. We recommend that businesses with five or more employees implement a carefully drafted employee handbook. Businesses with fewer employees should employ a cost benefits analysis with an attorney to determine whether a handbook is necessary. Because handbooks require extensive attorney time to draft and review they may not be the best use of resources.
If you still have questions – trust us, you’re not alone. Fortunately, we’re here to help. Contact us today to schedule a conversation with an attorney.
