What Does Governor Abbott’s Mask Repeal Mean for Employees?
As Texas employee rights attorneys, we've been fielding some common questions about the recent changes to the mask mandate in the state. Here's an overview of what employees and employers should know.
Can Texas employers require masks in the workplace now that the mask mandate is repealed?In a word, yes—employers can still require employees to wear masks in the workplace. Even if employers would like to lift mask requirements, they could potentially violate the federal Occupational Safety and Health Act (OSHA) for doing so.
When OSHA published its Guidance document on preventing the spread of COVID-19, it identified face coverings as a reasonable measure for reducing coronavirus in the workplace. OSHA’s coronavirus rules are still in full effect, and the Biden administration has indicated a desire to see greater OSHA enforcement of workplace health and safety standards. This means Texas employers could potentially face OSHA violations for dropping all mask requirements.
Can you get fired for refusing to wear a mask at work?In Texas (and most states, for that matter) employees can be fired for almost any reason. In general, employers have the upper hand (which is why employees need assertive attorneys on their side). Of course, employers cannot terminate someone solely on the basis of things like race, gender, religion, age, or disability.
Currently, firing an employee for refusing to wear a mask does not break any laws (unlike other forms of wrongful termination). If an employee fails to comply with safety precautions, such as those recommended by OSHA and the CDC, they can be disciplined or terminated. However, employers should enforce safety policies even-handedly. If an unscrupulous employer only targets African American employees for refusing to wear a mask, but says nothing to maskless Caucasian employees, their actions could be discriminatory.
Likewise, employees who requested reasonable accommodations under the Americans with Disabilities Act because, for example, they have a respiratory condition that prevents them from wearing a mask, might be protected from discipline.
Aside from these special exceptions, however, employees may still be terminated for refusing to wear a mask.
Can Texas businesses still require customers to wear a mask?If you work with customers or clients at all, you have likely had to ask numerous people to wear a mask over the last year. While most employees do not have the authority to make decisions for their workplace (such as whether masks are required), those in customer service positions have been forced to uphold store policies. Sadly, we’ve all seen news stories about employees getting assaulted for simply doing their job and asking patrons to wear a mask.
As much as we would all like to see an end to mask-wearing, social distancing policies, and coronavirus in general, businesses may still require masks in their establishments. And, just as employers can discipline employees for refusing to wear a mask, those businesses can require employees to uphold their mask policies. While Governor Abbott’s repeal of the statewide mask mandate prevents individuals from fines or penalties for failure to wear a mask, individuals can still be asked to leave a business. Those who refuse to leave can be charged with trespassing, so they may still face fines and penalties.