Best Ohio Employment Discrimination Attorney Answer: Can my employer require that I wear a mask at work? What kind of protective equipment can my job force me to wear? If the equipment my boss gave me triggers my asthma, do I have to wear it?
Hang in there, Ohio. It certainly has been a rough couple of months since COVID-19 sent us scurrying for shelter. While the threat of the Coronavirus/COVID-19 pandemic is far from over, we are getting closer to something that resembles normal life every day. As Winston Churchill once said, “Now, this is not the end. It is not even the beginning of the end. But it is, perhaps, the end of the beginning.” Of course, whether it is the end of the beginning or the beginning of the end, The employment lawyers at Spitz, The Employee’s Law Firm stand ready to answer your questions when you call the right attorney.
Ever since the COVID-Pandemic hit Ohio, forcing a government shutdown, our dedicated employment lawyers have been fielding calls from employees wanting to know about their rights during the COVID pandemic. A lot of these questions go something like this, “Can my job make me work from home?” For the answer, check out our previous blogs; Can My Boss Make Me Come To Work During Stay At Home Order?, and Can My Manager Make Me Work At Home Because Of The Coronavirus?
The point is, a lot of people are wondering what their employer can, or cannot, require them to do in response to the COVID-19 pandemic. This question became a little more complicated
On April 27, 2020, after Ohio Governor, Mike DeWine, announced his plan to responsibly reopen Ohio.
Governor DeWine is taking a staged approach to reopening the state. First, as of May 1, 2020, non-overnight healthcare procedures, dentists, and veterinary offices were allowed to reopen. On May 4, 2020, distribution centers, manufacturers, general construction, and most office environments reopened. Next, on May 12, 2020, retail stores and service providers will be allowed to start back up. Until further notice, restaurants, and bars will only be permitted to serve to take out or delivery customers. Gyms, theaters, and large sporting events will also remain closed.
For those businesses that are reopening this month, the Governor has issued additional essential guidelines. Specifically, the Governor has issued the following protocols for all businesses.
- Require face coverings for employees and recommend them for clients/customers at all times.
- Conduct daily health assessments by employers and employees (self-evaluation) to determine if the employee is “fit for duty.”
- Maintain good hygiene at all times – hand washing, sanitizing, and social distancing.
- Clean and sanitize workplaces throughout the workday and at the close of business or between shifts.
- Limit capacity to meet social distancing guidelines.
- Establish maximum capacity at 50% of fire code.
- And, use appointment setting where possible to limit congestion.
Our lawyers here at Spitz, The Employee’s Law Firm have already been following these essential protocols and then some. (See Our Handling Of The Coronavirus (Covid-19) Outbreak.) In the coming months, we will continue to implement best practices to keep both our employees and our clients safe.
Since Governor DeWine launched the responsibly reopen Ohio initiative, our attorneys have been getting a lot of calls asking if an employer actually can require an employee to wear a mask while at work. Of course, it did not help that shortly after Governor DeWine launched the responsibly reopen Ohio initiative, he backtracked, saying that face masks were only recommended for employees. While explaining his flip-flop, Governor DeWine gave two reasons for not requiring masks. The first, that some individuals found masks to be uncomfortable and unnecessary. Second, because wearing masks might be complicated for some individuals with disabilities.
Of course, the first reason is absolute hogwash. While masks may be uncomfortable, spreading COVID-19 and forcing another shutdown is far more painful. Not to mention, that refusing to wear a mask puts lives at stake. For more information, check out this article from Healthline.
Governor DeWine’s second reason for initially downgrading the use of masks from required to recommended may have some merit. We have gotten a lot of calls from employees who say that the mask their employer gave them aggravates their asthma or other respiratory condition. Of course, there is a simple answer to Governor DeWine’s concerns. That answer lies in the Americans with Disabilities Act (“ADA“).
The ADA was passed into law in 1990 and is a civil rights law that makes it unlawful to discriminate against people with disabilities in jobs, schools, transportation, and all public and private places that are open to the general public. Of course, our lawyers typically focus on the employment aspect of the ADA. Beyond the similar protections against discrimination and harassment provided under Title VII of the Civil Rights Act of 1964 to worker’s based on race/color, religion, gender/sex, national origin, and age, the ADA also requires employers to make reasonable accommodations to assist disabled employees to their jobs. Specifically, the ADA requires employers to provide reasonable accommodations to employees who, either with or without such accommodations, are qualified to “perform the essential functions of the employment position.” (See How Do I Get A Disability Accommodation For My Job?; Can A Service Dog Be A Disability Accommodation At My Job?; and Does My Job Have To Accommodate My Paralysis?). To that end, the ADA requires companies to have conversations with disabled employees to determine to decide if the employer can provide a reasonable accommodation without undue cost or undue hardship. This discussion is called the interactive process, and it is a violation of the ADA for employers to refuse to engage in this discussion. If a boss, manager, or even the owner of the company that you work for fires an employee for asking for an accommodation or opposing disability discrimination, it is a wrongful termination, and it would be best to get a top attorney to assert a claim for you.
If an employee is unable to wear a facemask, as required by law or by rule of the employer, the employee should discuss a possible accommodation with their employer. For example, the solution may be as simple as allowing the disabled employee to wear a different type of mask. One that does not interfere with their disability. Another alternative is that an employee could ask to continue to work remotely, or in a separate area away from other employees. Or, the employee could request a schedule change to reduce the time they spend around others in the office. The point is, there are multiple accommodations available for disabled employees. As our employment lawyers recently blogged, given that many employers have already provided similar accommodations, these employers will have a difficult time denying an employee’s reasonable request. (See How Will Disability Accommodations Look After COVID-19?, and More Disability Law: Working From Home After COVID-19?)
In addition, if an employer is recalling employees and providing the employees with the required protective equipment, the employer must make sure that the equipment provided works for all employees. It is far too common that when it comes to personal protective equipment, an employer takes a one size fits all approach. Of course, when it comes to protective equipment, what is good for the goose is not always what is good for the gander. As we have blogged before, employers all too often provide ill-fitting protective equipment to their female employees. (See Discrimination For No Female Safety Equipment?)
Failing to provide the effective protective equipment, even things as small as gloves and facemasks, to female employees is illegal gender discrimination. As regular readers of our blog know, gender is one of the protected classes under Title VII of the Civil Rights Act of 1964 and the similar Ohio law R.C. § 4112.02(A). Both employment discrimination laws make it illegal for an employer to discriminate against an individual based on race/color, religion, gender/sex, national origin, and age.
It is crucial to keep the ADA’s accommodation requirements, and Title VII and Ohio law’s anti-discrimination mandates in mind when you return to work, as Governor DeWine recently changed his mind again. As of April 30, 2020, face masks are again required for employees of opened businesses. This time, however, the requirement comes with a few exceptions. An employee is not required to wear a face mask when:
- Wearing a mask is prohibited by law or regulation.
- Wearing a mask is against documented industry standards.
- Wearing a mask is not advisable for health reasons.
- Wearing a mask violates company safety policies.
- An employee is working alone in an assigned area.
- When safety issues exist, or there is a functional reason for an employee not to wear a face mask.
If your employer forces you to wear a face mask that aggravates your disability, or if your employer provides one size fits all equipment that does not protect a select group of employees, you need to call the right attorney If you are searching “I need a lawyer because I have been wrongfully fired or terminated;” or “I have been discriminated against or harassed based on my …” race, national origin, gender, age, religion or disability; or even think that you might need an employment lawyer, then it would be best to call the right attorney to schedule a free and confidential consultation. Call our office at 866-797-6040. Spitz, The Employee’s Law Firm and its attorneys are experienced and dedicated to protecting employees’ rights and solving employment disputes.
Disclaimer:
This lawyer employment law website is an advertisement. The materials available at the top of this Coronavirus law page and at this employee’s attorney website are for informational purposes only and not for the purpose of providing legal advice. If you are still asking, “Can I still work from home?”, “What should I do if I have a preexisting condition and cannot come back into work?,” “My boss discriminated against me because I’m disabled” or “I was fired for reporting COVID safety violations”, it would be best for to contact an Ohio attorney to obtain advice with respect to any particular employment law issue or problem. Use and access to this employment law website or any of the links contained within the site do not create an attorney-client relationship. The legal opinions expressed at or through this site are the opinions of the individual lawyer and may not reflect the opinions of Spitz, The Employee’s Law Firm, Brian Spitz, or any individual attorney.