A certain segment of the population has decided to make a political statement out of not wearing face masks during the COVID-19 pandemic. As Bloomberg reports, however, employees who insist on defying employer policies in this area have basically zero protection from being fired:
Mandatory face-covering policies at work are a common component of most tentative reopening plans, based on recommendations from the Centers for Disease Control and Prevention, as well as state and local governments, to stem the spread of Covid-19.
This safety precaution is a term of employment that, if broken, can justify a termination except in limited circumstances, such as medical or religious reasons that prevent a worker from wearing a face covering, attorneys said. Union-represented employees, and public workers who object to the policy based on free speech, also have little recourse to avoid discipline.
I come down firmly on the side of the employers and not the employees on this issue. Back in 2005, I wrote a post on At will employment: Should there be a public policy exception for gun owners? In it, I criticized a West Virginia case carving out a public policy exception to the employment at will doctrine to protect an employee who was fired for violating an employer policy against guns in the workplace:
You might say, "well, this is just a little exception to at will employment and it protects Constitutional rights." If so, you would be wrong. It would take a remarkably extremist understanding of the Second Amendment, as well as an utter misunderstanding of the state action requirement, to believe that one has a Constitutional right to possess and use firearms on your employer's property. ...
In any case, it is the steady erosion of carving out one "little exception" to the at will doctrine after another that has essentially eviscerated that doctrine.
If you think erosion of the employment at will doctrine is unwise, as I do, you will join me in supporting the employers in this context.
