By Stephen Roppolo

Law360 (July 22, 2020, 1:26 PM EDT )

Stephen Roppolo

Earlier this Spring, a Texas employee alleged that Hillstone Restaurant Group Inc. prohibited her from wearing a face covering while working as a cook at R+D Kitchen, a Dallas-area establishment. Her managers told her that, unless she agreed to work without a face covering, she would be taken off the schedule.

And when she refused to work without a mask, she claimed that the restaurant took away her hours. She filed suit against the restaurant group alleging she was being forced to choose between earning money to feed her family and potential unprotected exposure to COVID-19. The Dallas County District Court granted her request for a 14-day temporary restraining order, forcing the restaurant group to allow the employee to wear a mask in the workplace during the COVID-19 pandemic.

Now, only a few months later, the pandemic remains a very serious issue in Texas as COVID-19 cases, hospitalizations and positive test results are rising.

In response to the current circumstances in the state, Gov. Greg Abbott has not only permitted local authorities to implement mandatory mask rules through business regulation, but on July 2, he issued an amended executive order requiring that Texans visiting commercial establishments and even going outdoors wear a mask if they cannot maintain social distancing of at least six feet. And this can often be the case in many work environments. 

Whether employees work on an assembly line or in an open cubicle, a constant buffer of six feet that is never compromised is just not feasible. In those cases, face coverings are a necessary safety measure. 

Thus, under the current circumstances, it would probably be difficult to find an employer in Texas who would, as the employee in the R+D case alleged, reject an employee's request to wear a mask while working. Indeed, the opposite is likely true — employers are now much more likely to insist that employees wear masks, even over the objections of their workers.

But what about employees who object to wearing a mask based on underlying medical conditions that may make masks impractical or even dangerous? What are Texas employers to do when confronted with these situations? The short answer is that those objections should not simply be tossed aside but rather they should be properly handled by employers to avoid any potential liability.

Texas employers complying with local and state rules requiring masks in the workplace should keep in mind that these rules do not override obligations to consider reasonable accommodations to those with disabilities. Indeed, the Americans with Disabilities Act requires that employers engage in an interactive process when a person with a disability requests an accommodation, even when the accommodation initially requested by the employee is determined to be unreasonable or constitutes an undue hardship on the employer. 

Therefore, when faced with requests from an employee to forego a mask, Texas employers, like all employers, should avoid knee-jerk reactions and instead engage in a conversation with the employee, asking the following questions:

The mask is not just for your safety but the safety of those around you — why do you believe you should not have to wear a face covering? 

If the answer does not suggest a medical condition that might be a disability and instead focuses on discomfort or inconvenience, an employer can (and probably should) hold the line on the face covering rule unless the employee can perform the job while never being within six feet of another employee.

What is the nature of the medical condition that prevents you from wearing a mask?

Employers are permitted to learn information about an employee's alleged disability when engaging in the interactive process. The ADA does require, however, that any medical information learned in this process be kept confidential and stored in a medical file separate and apart from the employee's personnel file.

Can you provide information from your doctor confirming your medical condition and why not wearing a mask is necessary to accommodate it?

Seeking medical advice is not only permitted but advisable. Employers do not have to take an employee's word that not wearing a mask is medically necessary to accommodate an underlying disability. In fact, the health care provider may conclude that wearing the face covering for shorter periods of time, and removing it when others are not within six feet, can satisfy the limitations of the underlying medical condition.

Are there any alternative steps we can take that might accommodate your underlying disability? 

The ADA does not require that an employer select the employee's preferred accommodation, but rather requires the employer to just make a reasonable accommodation available. Alternatives might include timeouts from a mandatory mask rule, but other options might be worth considering, like continued remote work, temporary reassignment to different tasks which would minimize social distancing, or changing the physical work space — for example, moving the employee from a cubicle to an office with a door.

Conclusion

Advice on face coverings has gone back and forth and Texas employers are doing their best to keep up with the constantly changing guidance coming down from state and local officials. But now that Abbott has implemented the state's mask rule, Texas employers will need to determine the best way to get employees on board to avoid liability and ensure a safe workplace.

Most employees will comply and wear masks without objection as an easy way to protect themselves and their colleagues. Other employees, however, will object to a mask requirement for a variety of reasons.

In general, employers should expect objections and should be armed and ready to handle them appropriately and in accordance with the ADA. Therefore, when faced with requests from an employee to forego a mask, Texas employers should avoid knee-jerk reactions and engage in a meaningful discussion with the employee by asking questions that will determine how the request can be properly handled to both avoid potential liability while keeping that employee safe.

Finally, worker safety should be a top priority for all employers, and it is important for employers to recognize that masks are not a substitute for appropriate social distancing. Rather, face coverings supplement proper separation, so that when reduced distancing occurs unexpectedly, the face covering can minimize risk of transmission.

Unfortunately, many people believe that a mask allows them to ignore social distancing guidelines, a temptation that employers must be vigilant about confronting. Hand-washing, facility cleaning and other measures recommended by the Centers for Disease Control and Prevention should also remain in place along with masks.

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Stephen Roppolo is managing partner of the Houston office at Fisher Phillips.

The opinions expressed are those of the author(s) and do not necessarily reflect the views of the firm, its clients, or Portfolio Media Inc., or any of its or their respective affiliates. This article is for general information purposes and is not intended to be and should not be taken as legal advice.

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