Jackson Kelly PLLC

Labor & Employment News Alert


May 22, 2020

By: Justin M. Harrison

Inexplicably, wearing face masks during the COVID-19 pandemic has become controversial. We see viral videos of people claiming that their rights have been violated. Several instances have been reported where retail customers are challenging requirements to wear masks when patronizing a business. We see examples of customers stating that “the ADA prohibits you from requiring me to wear a mask.” This begs the question: Can a business require its employees and customers to wear face masks? The short answer is yes, especially during the COVID-19 pandemic. 

The Americans with Disabilities Act (“ADA”) and the West Virginia Human Rights Act (“WVHRA”) prohibit employers and places of public accommodation (e.g., businesses) from discriminating against individuals with disabilities. Moreover, both statutes require businesses to accommodate employees and customers with disabilities. There are exceptions to these requirements, however. For example, businesses are not required to provide accommodations to someone if their medical condition presents a direct threat. That person is not protected by the nondiscrimination provisions under the ADA or the WVHRA. Based on guidance issued by the Centers for Disease Control (“CDC”), the Equal Employment Opportunity Commission (“EEOC”) recently recognized that the COVID-19 pandemic satisfies the “direct threat” standard.1  This is significant because the EEOC is the federal agency that is responsible for enforcing the ADA.

Let’s review some examples to see how the direct threat standard plays out.

Scenario 1: An Employee claims they have a disability that prevents them from wearing a mask. This triggers the Employer’s obligation to participate in the interactive process. The Employer is not automatically obligated to relieve the Employee of the requirement to wear a mask, but the Employer is entitled to inquire about the nature of the disability, obtain confirmation of it from the Employee’s providers, and then communicate with the Employee about the request and/or alternatives. These steps may not be necessary, however, because if all alternatives involve exposing the Employee to customers or co-workers, without any protection during the COVID-19 pandemic, then this likely satisfies the direct threat standard as recognized by the EEOC. There is no duty to accommodate an employee in this situation because they are no longer protected under the ADA or the WVHRA. At this juncture, an Employer might choose to place the Employee on an unpaid leave of absence or temporarily reassign the Employee to another job, although there is no requirement to do either because the employee is no longer entitled to the statutory protections.

Scenario 2: Customer reports to your place of business and objects to any requirement to wear a mask. You can ask the customer if they have a disability or medical condition that prevents them from wearing the mask. If the customer responds “yes,” then you should have some additional dialogue with the customer to see if there are alternative methods to servicing the customer. Under normal circumstances, whether a customer poses a direct threat is usually determined on a case-by-case basis that requires individualized inquiry. With the COVID-19 pandemic, however, businesses are arguably on stronger footing to decline service to a customer who refuses to follow safety protocols that were put in place to stymie the spread of COVID-19. The recent example of the Costco manager calmly offering to provide alternative service to the patron who refused to wear a mask is the ideal way to respond to this situation.

The COVID-19 pandemic has created a dynamic legal environment for businesses to provide goods and services in a safe manner. Federal, state and local guidance continues to evolve, but while the EEOC continues to recognize COVID-19 as a “direct threat,” then businesses can require employees and customers to wear masks for the safety of everyone.

1  See:  https://www.eeoc.gov/wysk/what-you-should-know-about-covid-19-and-ada-rehabilitation-act-and-other-eeo-laws.


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