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Ask Leslie: An Employee Claims He Cannot Wear A Mask Because Of A Disability: What Do I Do?

By Leslie Zieren, The McCalmon Group, Inc.

Dear Leslie:

We have a rule that requires employees to wear a mask. What if an employee refuses to wear a mask because of a disability?

Signed: Cliff

 

Dear Cliff:

The EEOC's guidance on the pandemic and the Americans with Disabilities Act recognizes the direct threat the virus poses to workers: "Employers may take steps to determine if employees entering the workplace have COVID-19 because an individual with the virus will pose a direct threat to the health of others." https://www.eeoc.gov/wysk/what-you-should-know-about-covid-19-and-ada-rehabilitation-act-and-other-eeo-laws

Manage a request for a reasonable accommodation for a disability as you would have pre-pandemic. Engage in the interactive process with the employee. Require a written statement from their health care provider that confirms that their disability prevents them from safely wearing a mask and that sets forth recommended reasonable accommodations.

"Reasonable" is a case-by-case determination in light of all the facts and circumstances, including public health information and recommendations about preventing the spread of the coronavirus.

Explore the availability of other options for such an employee like telework. If the person can only work onsite and a health care provider states that they cannot wear a mask, consider a face shield; the installation of a barrier between the person and any others in the workplace; requiring the person to enter through a separate door, use a separate bathroom, and only go certain places in the workplace that can be sanitized every day. Require the person to bring their own food and water, for example, so that they do not enter the workplace kitchen.

Consult as well with your local health department for suggestions on whether it is possible to reasonably accommodate this employee in light of your particular worksite, the employee's job duties, and the direct threat to public health and safety, as well as to the threat this employee poses to your other employees, customers, vendors, and to others who interact with your workplace.

Only reasonable accommodations are required. Think of it this way – an employee with a disability may be given an exception to an employer's "no pets in the office" policy as a reasonable accommodation by allowing the employee's service dog to be in the workplace. However, if that service dog bites or threatens other employees or creates a sanitation hazard by relieving itself on the office floor instead of outside, that employee is not going to be allowed to have the service dog in the workplace because it is no longer a "reasonable" accommodation, but rather is a direct threat to the health and safety of others. 

Employers should make an effort to stay current on the latest information from the medical experts. You can access the Covid-19 Resources button on your platform for assistance.

Jack McCalmon and Leslie Zieren are attorneys with more than 50 years combined experience assisting employers in lowering their risk, including answering questions, like the one above, through the McCalmon Group's Best Practices Help Line. The Best Practice Help Line is a service of The McCalmon Group, Inc. Your organization may have access to The Best Practice Help Line or a similar service from another provider at no cost to you or at a discount. For questions about The Best Practice Help Line or what similar services are available to you via this Platform, call 888.712.7667.

If you have a question that you would like Jack McCalmon or Leslie Zieren to consider for this column, please submit it to ask@mccalmon.com. Please note that The McCalmon Group cannot guarantee that your question will be answered. Answers are based on generally accepted risk management best practices. They are not, and should not be considered, legal advice. If you need an answer immediately or desire legal advice, please call your local legal counsel.

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