Employee Question – I’m Being Forced to Wear A Mask At Work During COVID-19. Is This “Legal”?

July 14, 2020

Many Illinois employees are curious about their rights while working during the COVID-19 pandemic.  In recent weeks, Pietrucha Law Firm, LLC has received over 100 employee inquiries about COVID-19 employment and unemployment matters.

QUESTION :

Can I be forced to wear a mask at work during COVID-19?

ANSWER :

YES, but there can be medical and/or religious exceptions.

COMMON SENSE ANALYSIS:

MASKS AT WORK.  This is a difficult topic that does not have a clear “yes” or “no” answer. Overall, you should be allowed to make decisions for your own well being but in an employment setting, the employee doesn’t have full control.

The logic behind the mask requirement is that you can spread flu/COVID-19 before you have symptoms of it, and wearing a mask would contain the spread. Some think COVID-19 is a fake crisis that has been overblown and others are taking it seriously and scared to interact in public.

LEGAL ANALYSIS:

Companies are getting sued for wrongful death and negligence when they don’t provide their public-facing employees with masks and other protective gear, and also when they don’t protect their employees from others including the public, co-workers and even candidates for new hire.

Medical Exemption

If you don’t want to wear a mask and you have a medical reason for it, you would need to provide the employer medical documents to substantiate the medical condition that prevents you from wearing a mask. You would have to ask for medical accommodation.

Religious Exemption

If you don’t want to wear a mask and you have a religious reason for it, you would need to communicate your beliefs and ask for religious accommodation

Government Guidance on Disability and Religious Accommodations during COVID-19

In April 2020, the federal government via the EEOC indicated the following:

An employer may require employees to wear protective gear (for example, masks and gloves) and observe infection control practices (for example, regular hand washing and social distancing protocols).

However, where an employee with a disability needs a related reasonable accommodation under the ADA (e.g., non-latex gloves, modified face masks for interpreters or others who communicate with an employee who uses lip reading, or gowns designed for individuals who use wheelchairs), or a religious accommodation under Title VII (such as modified equipment due to religious garb), the employer should discuss the request and provide the modification or an alternative if feasible and not an undue hardship on the operation of the employer’s business under the ADA or Title VII.

UNEMPLOYMENT BENEFITS:

If you got fired because of COVID-19 layoff, you can collect unemployment benefits.

Regular benefits last up to 26 weeks. Eligibility for Federal Covid-19 related benefits will add 13 weeks.

IDES (Ilinois agency that administers unemployment benefits) recently released an online chat tool and COVID-19 FAQs at: Weblink to Illnois Unemployment office COVID-19 FAQ

However, if you are fired because you refuse to wear protective gear or otherwise fail to observe infection control practices, you most likely CANNOT collect unemployment benefits.

Why?

• Individuals who leave work without a good reason attributable to the employer are generally disqualified from receiving unemployment benefits.
• The eligibility of an individual will depend on whether the facts of his or her case demonstrate the reason for job separation was attributable to the employer.
• An individual generally has a duty to make a reasonable effort to work with his or her employer to resolve whatever issues have caused the individual to disagree with working conditions.

TAKEAWAYS:

1. If your employer says you must wear a mask (or gloves) (or wash your hands) and you don’t want to, explain why you won’t/can’t but understand that there is no guarantee you will get your way absent a documented medical or religious accommodation you must request and discuss with your employer.
2. The burden is on the employee to initiate disputes over protective gear.
3. If you think COVID-19 is overblown and refuse to abide by safety recommendations, your job can fire you or make you stay at home.