News & Announcements

When Employees Don’t Want to Wear Face Coverings

Posted Thursday, June 11, 2020

Just a couple of months ago, employers were asking whether they had to allow employees to wear masks at work. Now the questions most frequently asked are whether employers can require employees to wear masks, and what should employers do when employees do not want to wear them.

Can an employer require employees to wear face coverings?

The short answer is generally, yes. But of course, in many situations, the answer is not that simple. The first step is to know what is required by law. Note that the law is constantly changing as the situation evolves, so before making any decisions, it’s always a good idea to confirm you are reviewing the most current law by visiting the state’s and applicable county or counties’ websites.

State of Hawaii

According to the Ninth Supplementary Proclamation Related to the COVID-19 Emergency, Section III.C.5.:

5. Face covering. All customers shall wear a face covering as described and recommended by the CDC (see Exhibit C), while waiting to enter and while at a business or operation. All employees of businesses or operations who have any contact with customers or goods to be purchased shall wear the cloth face covering recommended by the CDC while at their place of employment.

Emphases added. Exhibit C indicates that cloth face coverings should—

  • fit snugly but comfortably against the side of the face
  • be secured with ties or ear loops
  • include multiple layers of fabric
  • allow for breathing without restriction
  • be able to be laundered and machine dried without damage or change to shape

All businesses operating in the State of Hawaii must comply with this requirement at a minimum. However, employers must also be aware of the differing requirements of the county or counties in which they operate.

City and County of Honolulu

The City and County of Honolulu’s Emergency Order No. 2020-14, Order 5 (Non-Medical Grade Face Coverings), provides:

All employees who work at businesses or perform services at Essential Businesses, as provided in Section II.F. of this Order, and Designated Businesses and Operations, as provided in Section II.G. of this Order, shall wear non-medical grade face coverings over their noses and mouths when engaged and interacting with customers and visitors of the Essential Business and Designated Business and Operation.
. . . .
An owner or operator of an Essential Business under this Order, Section II.F. or Designated Business and Operation under this Order, Section II.G. may refuse admission or service to any individual who fails to wear face coverings.

Face coverings under this Order may not be worn only under the following circumstances:

  • Within banks, financial institutions, or using automated teller machines where the inability to verify the identity of the customer or visitor of the bank, financial institution or automated teller machine poses a security risk;
  • By individuals with medical conditions or disabilities where the wearing of a face covering may pose a health or safety risk to the individual;
  • By children under the age of 5;
  • By first responders (Honolulu Police Department, Honolulu Fire Department, Honolulu Emergency Services Department) to the extent that wearing nonmedical grade face coverings may impair or impede the safety of the first responder in the performance of his/her duty;
  • By children in childcare, educational, and similar facilities consistent with the latest guidance from the Centers for Disease Control and Prevention (“CDC”) for such facilities;
  • As allowed by another provision of this Order.

(Emphases added.) Additional guidelines more specific to certain operations appear in Exhibit A to Emergency Order No. 2020-15. For example, section 13.b.i. provides that “Cooks and kitchen staff that do not interact with the public are encouraged, but not required, to wear face coverings during their shifts. All other restaurant employees must wear face coverings during their shift.”

County of Hawaii

According to Mayor’s COVID-19 Emergency Rule No. 4, Section II.3.b.1.:

All persons, who are five (5) years old and older and all employees, who have any contact with other employees, customers, or goods to be purchased, shall wear face coverings or masks.

Exempted from wearing face coverings or masks are persons who have health or medical conditions, trouble breathing, or are otherwise unable to remove the cover without assistance. Unless there is an exemption, a business shall not allow entry to anyone that refuses to follow this requirement.

(Emphasis added.)

County of Kauai

The County of Kauai’s Mayor’s Emergency Rule #7 states that “All employees and customers shall wear face coverings as described and recommended by the CDC.” The Rule further provides that in work-related vehicular travel, “Six foot social distance requirements and face covering requirements must be
maintained to the extent reasonably feasible.”

County of Maui

According to the County of Maui’s Public Health Emergency Rules, Amended June 8, Rule 5.A.:

Face covering. Persons over the age of 5 years old shall wear a face mask or cloth covering the nose and mouth while in public settings. This requirement shall not apply to persons engaging in permissible exercise activities, so long as physical distancing requirements are maintained. This rule shall also not apply to those entering financial institutions, to anyone who has trouble breathing, is unconscious, incapacitated or otherwise unable to remove the covering without assistance, or specifically allowed for under these rules. Businesses or designated operations may refuse to allow entry to persons not wearing face coverings, unless an exception applies under this section.

(Emphasis added.) Additionally, Rule 5.J. provides:

Signage. Essential and designated businesses or operations shall post a sign at the entrance of the facility informing employees and customers that they shall, at a minimum: wear CDC recommended face coverings while in the business or operation; avoid entering the business if they have a cough or fever or otherwise do not feel well; maintain a six-foot distance from one another; do not shake hands.

(Emphases added.) Additional guidelines more specific to certain operations appear in Exhibit A. For example, section 13.b.i.1. provides that “Cooks and kitchen staff that do not interact with the public are encouraged, but not required, to wear face coverings during their shifts. All other restaurant employees must wear face coverings during their shift.” Section 14.a.ii. states that all employees of hair and nail salons, tattoo parlors, aestheticians, and other personal services are “required to wear a CDC-recommended face mask whether servicing clients or not. Face shields must also be worn during all services (technicians may utilize plexiglass shields between employee and client).”

Federal Guidance

Even if the applicable state and county laws do not require an employee to wear a mask at work, an employer can still require its employees to wear them through company policy. The EEOC, in its Pandemic Preparedness in the Workplace and the Americans with Disabilities Act guidance document, states:

12. During a pandemic, may an employer require its employees to wear personal protective equipment (e.g., face masks, gloves, or gowns) designed to reduce the transmission of pandemic infection?

Yes. An employer may require employees to wear personal protective equipment during a pandemic. However, where an employee with a disability needs a related reasonable accommodation under the ADA (e.g., non-latex gloves, or gowns designed for individuals who use wheelchairs), the employer should provide these, absent undue hardship.

Don’t Forget About the ADA

As indicated in the EEOC’s answer, employers must also remember their obligations under the Americans with Disabilities Act (“ADA”). If an employee refuses to wear a mask because of a medical condition, an employer must engage in the interactive process to explore reasonable accommodations that would assist the employee in performing the essential functions of the position. As part of the interactive process, an employer may request that the employee provide additional information and medical documentation supporting the employee’s inability to wear a face covering.

If an employee is unable to wear a face covering, consider the following possible accommodations:

  • If the employee’s essential job functions can be done at home, allow the employee to work remotely. This may include providing the employee with a laptop;
  • Explore alternative face coverings that accommodate the employee’s medical condition;
  • Reassign non-essential job functions or move the employee to a different location so the employee does not need to interact with others;
  • Modify the employee’s workspace;
  • Provide the employee a leave of absence until face covering are no longer required.

Remember that the interactive process is an ongoing conversation, which means that if an accommodation stops working, the company is required to work with the employee to identify another option. An employer, however, is not required to provide the specific accommodation requested by the employee. Additionally, an employer is not required to provide an accommodation if it will cause an undue hardship. Before claiming undue hardship, however, consult with knowledgeable HR professionals or legal counsel. Undue hardship must be based on an individualized assessment of current circumstances that show a specific reasonable accommodation would cause significant difficulty or expense.

Other Considerations

The legal obligations might actually be the easy part. There are many other matters to consider when requiring face coverings at work. For instance, make sure your leadership team is leading by example. If anyone in leadership—from the CEO to a shift supervisor—is not wearing a face covering, employees won’t either.

Last, but certainly not least, consider why employees without disabilities do not want to wear face coverings. For most people, this is the first time they ever had to wear face coverings, which are unquestionably uncomfortable and inconvenient. Take time to listen to employees’ concerns. Even for employees without disabilities, consider the accommodations suggested above. Acknowledge that it is not an ideal situation, but clearly explain the “WHY” behind wearing a face covering. Yes, it is required by law in most cases. More importantly, wearing a face covering is for the protection of not only the wearer, but also anyone with whom they come into contact. We each have the responsibility to consider the impact we could unintentionally have on our coworkers, vendors, customers, and their families.

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