11 March 2021

HR Fact or fiction - Terminator edition

  • By Anthony Laporte
  • With 0 COMMENTS
HR Fact or fiction - Terminator edition

Can You Fire An Employee For Not Wearing A Mask or Not Wearing It Properly?

Maybe or maybe not.

If your reason for the termination is protecting the general population's greater good, then why not?

Should you or could you put on your SuperEmployer cape and leap to action to exercise your employer superpowers?

Whether or not your employees are required to wear a mask because of a public health order, you can satisfy your OSHA obligations to protect employees against known workplace risks, which the number one 2021 culprit is COVID-19, and, if you're following the advice from infectious disease specialists worldwide, your already know that your business should require its employees to wear a mask.


But what if you have an employee who refuses to wear a mask, or perhaps he wears his mask without covering both his nose and mouth? How should you handle these employees?


Terminator-style, they won't be back!


But what if the employee claims he has a medical condition or constitutional right? Wow, now it gets complicated. 


A Simply suggestion, begin by politely reminding the employee masks are required in the workplace and ask the employee to wear one properly. 


If the employee continues to violate the rules, speak with him/her and have a conversation about the issue. Politely inform the employee OSHA has recognized COVID-19 as a risk in the workplace and could cause death or serious injury. Remind them that employers must protect employees from such risks, and one mitigation measure the Company is taking is requiring masks, along with other actions you're taking, such as physical barriers, increased disinfection of high-touch surfaces, staggered shifts/lunches/breaks.

If applicable, inform the employee you must follow state/local public health orders, which all employees wear mandate masks. Rules are rules, and laws are laws.


But what if the employee has a medical condition that prevents face coverings (severe asthma or something)? They will have probably already alerted you; however, if they haven't, after reviewing the workplace rules around masks, ask the employee if there is any reason he cannot wear a mask covering his nose and mouth.



Your next steps depend on the employee's response:

  • If the employee says no, nothing prevents him from following company policy, then inform him he is expected to comply with all company policies, including masks. Any future violations will be dealt with with disciplinary action up to and including termination. Note your conversation with the employee in his personnel file, including his statement there was no reason he cannot comply with the policy.

     Any questions on how to properly note this issue, please reach out to the SimplyPEO team. 

  • Maybe the employee says that masks violate his constitutional rights and freedom of personal choice. In that case, his opinion masks don't work, or anything similar, inform the employee the workplace policy does not violate constitutional rights, and you respect his personal views, but while at work, he needs to follow company policy and public health orders. Make the expectation that he must wear a mask covering his nose and mouth; if he does not, he will be subject to disciplinary action, up to and including termination. Terminator Edition. Note your conversation in the personnel file, including why he does comply with the policy and your response.

  • Suppose the employee says it's hard to breathe in a mask. In that case, it makes his asthma flair up, he is claustrophobic, gets dizzy, or anything similar, indicating the employee may have a medical condition making it difficult to wear a mask. You should engage in the interactive process under the Americans With Disabilities Act. This process determines if the employee has a medical condition and if there is a reasonable accommodation provided.


If you have never engaged in the interactive process before, or would like a refresher, please reach out to SimplyPEO. 


If the employee indicates he has a medical condition, let him know you are in their corner. Convey that you want to engage in the interactive process to determine a reasonable accommodation enabling him to perform his position's functions.

Let's think outside of the box.


Possible accommodation in this situation could be wearing a face shield as opposed to a face mask. Let the employee know you are prepared to accommodate them, but you need more information to do that.


As always your SimplyPEO team is here to help along the way.


Happy HRing,
Team Simply


Team Simply, Talk to me.


Anthony Laporte
Anthony Laporte
Anthony Laporte is President and Managing Champion of SimplyPEO (formally BCC, Inc). Anthony is a team builder, HR outsourcing industry advocate, and business development consultant that has helped hundreds of organizations create operational efficiencies via outsourcing.

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