Employers across America are requiring their employees to wear face coverings or masks while at work.

At the same time, employers across America are dealing with employees who have a million excuses why they can’t wear a face covering at work. Many of these excuses aren’t valid.

Some are.

If an employee claims to have a medical condition that prevents them from wearing a face covering, your ADA and FMLA radar should start buzzing. But how do you address this request?

Start with the ADA

An employee’s request not to wear a mask because of a medical condition triggers the interactive process under the ADA. Why? Simply put, the employee is requesting a modification to the manner in which they perform their job so that they can perform the essential functions of their job.

Here, the employee may have a respiratory impairment, anxiety disorder, autoimmune condition, or similar conditions. As several of my Littler colleagues address in this informative discussion, in addressing this situation from an ADA standpoint, the employer should ask the employee:

  • Does the employee actually have a condition that may need to be accommodated under the ADA, and can the individual provide reliable medical documentation to confirm their inability to wear a mask or face covering?
  • What are the essential functions of the employee’s job, and is wearing a face-covering a new, albeit transient, essential job function?
  • Are there alternatives to the mask or face covering requirement, such as use of a shield or methods for isolating the employee from others?
  • Would eliminating the face covering pose an undue risk to the safety and health of the employee or others?

Employers are wise to consider alternatives to meet ADA obligations.  Still, in many of these situations, you still will legitimately find that wearing a mask is an essential job function and the employee cannot be excused from wearing one at the worksite.

Finish with the FMLA

If you find that the only option available is to exclude the employee from working because the job requires that they wear a face covering, what do you call this leave?

I call it F-M-L-A leave.

Let me explain. An employee is entitled to take FMLA leave when: 1) they have a serious health condition that 2) renders them unable to perform one or more essential job functions.

Serious health condition: In most cases, the employee will be able to establish that they have an underlying medical condition, whether it’s a chronic condition or a long-term condition requiring ongoing care.  If they don’t have such a condition, then the inquiry is closed and no leave or accommodation is required. However, in many of these situations, the employee will find a doctor who will certify their medical condition.

Unable to perform job: But does this condition render them unable to perform an essential job function? In the COVID-era, it seems eminently reasonable for the employer to add face coverings as an essential job function for most or all positions.  Taking this position is only strengthened by state and local laws mandating face coverings and CDC guidance highly recommending them.

Here, the employee has a serious health condition that renders them unable to perform the essential function of wearing a face covering.  As the DOL made clear in recent opinion letters, because leave is “being taken for an FMLA-qualifying reason, the employer must [designate the absence as FMLA leave].” 29 C.F.R. 825.301(a)

Case closed.

Hat tip to my colleagues Casey Kurtz and Alexis Knapp for their candid thoughts on this timely topic.