Masks in the Workplace - What is Acceptable?

Question

When wearing masks in the workplace, what is deemed "inappropriate?” Some employees are using their masks to show their affiliation for or against political or social causes (i.e. #BLM, Back to Blue, or "Make America Great Again,” etc.). How can the employer differentiate how to determine what is acceptable and what is not acceptable?

Answer

Outside of any messages on masks that are harassing, threatening, or unlawfully discriminatory (i.e., based upon any protected characteristics such as race, sex, color, religion, age, etc.), what is appropriate or inappropriate for the workplace is largely determined by the employer. For example, if the employer wishes to prohibit employees from wearing "#BLM, Back to Blue, or 'Make America Great Again'" masks (note that an employer is not required to do this), it must then uniformly and consistently apply a clear rule on what types of masks are permitted in the workplace, to all employees, and which would likely include prohibiting employees from wearing any masks (you may wish to also include attire generally) that conveys messages on matters employees care about, or perhaps prohibiting any attire that conveys a message whether it contain text, a picture, or a symbol. Admittedly this can get a bit tricky given that certain categorizations can be broad and general, which in turn can create discrimination risk. Of course, as noted above, the employer need not permit any attire that contains harassing, profane, discriminatory, or threatening messages. However, if the employer were to restrict employees from wearing an article of clothing that includes certain political statements, social messages or other beliefs, opinions, etc., this can be a slippery slope. As an example, would a shirt or mask displaying a peace symbol constitute a social or political belief and thus be banned?

Typically to effectively meet its objective of prohibiting certain "controversial" messaging on attire, including face masks, the employer may find that only an "all or none" approach will ensure that all employees are treated fairly and in a non-discriminatory manner. Indeed employees may come to the workplace possessing any number of views, opinions, beliefs or practices related to politics, religion or other sensitive or controversial topics, some or all of which may be different from those of their coworkers. The employer would do well to take steps to ensure that employees do not use company premises or work hours to espouse ANY such opinions and viewpoints (even if through their attire), particularly if offensive or disruptive, and to instead focus only on their work and objective work-related discussion when they are there.

To this end, as noted, the employer is within its rights to revise its dress code policy to specifically reference face masks and other articles of clothing that may include direct or indirect messaging. We recommend having local counsel review or draft any revised policy on this topic to ensure it meets your objectives while remaining compliant with applicable law (within our format we are unable to draft or review documents). Should the employer seek to restrict employees from wearing any articles of clothing, masks included, that espouse a message or endorse a political candidate, social movement, religious group, etc., but allow messaging in other cases, this can be potentially problematic given the variability. Indeed if one employee shows up with a different cause or interest represented on a face mask or other attire, and some number of employees have been allowed to wear attire supporting other messages, then generally this needs to be tolerated (though certainly not if there were to be a profane, discriminatory, or threatening message worn).

Employers need to have very clear boundaries in their written policies to this effect as to what is and is not prohibited. As noted, typically the employer will find that it becomes an “all or nothing” proposition in order to ensure all employees are treated fairly and in a non-discriminatory manner. As a best practice, any new or revised policy should make clear that only neutral attire (including masks), void of any messaging or symbolism, etc. (including as to messages on matters employees care about), is permitted. While a policy prohibiting the espousing of views may engender considerable resentment from employees, particularly those who may wish to communicate their opinions, beliefs, affiliations, etc. on their apparel, as noted, an "all or none" approach mitigates against potential discrimination workplace concerns and ultimately may result in fewer morale issues (even if initially some employees resent it). The employer should ensure that any new policy language is clearly communicated to all personnel, and then uniformly applied and enforced as to all employees. The policy should stipulate the consequences for noncompliance, which should be meted out consistently when infractions occur.

Further, if employees come to work and behave unprofessionally or argue with each other, including about non-work matters, then the employer may and should still proceed with enforcing its normal disciplinary policies, ensuring that employees continue to behave in a professional manner during work hours and are productive, as they can be subject to a disciplinary consequence if they fail to do so.

The employer additionally has an obligation to ensure that the workplace is free from discrimination and harassment based on protected class status, including race, color, religion, gender, national origin, and disability, to name a few. If the employer becomes aware of workplace misconduct, then it absolutely should take prompt, remedial action to correct whatever impropriety it knows or discovers to be occurring.

Ultimately, the employer is arguably within its right to establish a neutral dress code policy that is fair and consistently applied to all employees. That said, given that such policies may be met with employee resentment, as noted the employer may wish to have local counsel assist with reviewing or drafting such a policy on this topic, to ensure it meets the employer's objectives while remaining legally compliant.

The Question of the Month is provided by Enquiron, a company wholly independent from Federated Insurance. Federated provides its clients access to this information through the Federated Employment Practices Network with the understanding that neither Federated nor its employees provide legal or employment advice. As such, Federated does not warrant the accuracy, adequacy, or completeness of the information herein. This information may be subject to restrictions and regulation in your state. Consult with your own qualified legal counsel regarding your specific facts and circumstances.

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Published Date:January 12, 2021

Categories: HR Question of the Month