Mask-Averse Workers Add Extra Hurdle As Employers Reopen

By Vin Gurrieri
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Law360 (May 14, 2020, 10:27 PM EDT) -- Thompson & Knight LLP's recent firing of a document services manager who referenced guns in a Facebook rant lambasting a store's rule requiring him to wear a mask could foreshadow contentious interactions that await employers if returning workers bristle at new safety mandates.

The Texas-based firm late last week said it had learned an administrative employee made a "threatening and offensive" post on his personal social media page that was "a complete violation" of the firm's values and its commitment to health and safety of surrounding communities. The firm said it fired the worker and "notified the proper authorities" about the post.

Thompson & Knight's decisive action apparently came in response to a post made by now-former manager Kevin Bain, who wrote any business that tells him to wear a mask will lose his business "forever," with references made to guns and ammunition.

Attorneys told Law360 that this incident serves as an example — albeit an extreme one — of the type of pushback employers may get from some workers who balk at rules requiring masks or social distancing, which have become political flashpoints but are being widely adopted by businesses as they reopen amid the COVID-19 pandemic.

Donald Schroeder, a partner at Foley & Lardner LLP, said there's "no question" some workers will chafe at new policies put in place when businesses start reopening and they return to physical workspaces.

"I certainly think this is going to be an issue; it just hasn't happened yet because nobody has gone back to work," he said. "It's just human nature that people are going to express frustration, express concern, express anger about changes that will come. ... We're right on the cusp of it."

Particularly when it comes to masks, workers can have many reasons for wearing them, including medical reasons.

Kristen Gallagher, a Las Vegas-based partner at McDonald Carano LLP, said employers may well be within their legal right to make workers follow safety policies regardless of whether they agree, yet cautioned that circumstances may vary for individual workers and specific industries.

"If people don't want to be wearing protective gear, I think an employer can certainly have a policy in place that requires it depending on their type of business," Gallagher said. "Of course, there are exceptions — an employee might have a certain condition or certain situation where they can't wear a mask safely, so there has to be that discussion with the employer and the employee."

#MeToo Protocols Offer Insight

Besides expressing hostility toward having to wear a mask, Bain's post included coarse language and threats of violence.

It read: "It's time to stop this BULLSHIT. Do I have to show the lame security guard outside of a ghetto store my CV19 test results? I will show him my Glock 21 shooting range results. With Hornady hollow points. Pricey ammo, but worth it in this situation."

The post continued: "They have reached the limit. I have more power than they do ... they just don't know it yet." A Glock 21 is a semiautomatic handgun, and "Hornady hollow points" are a type of bullet.

While the Thompson & Knight situation wasn't squarely in the employment context since Bain wasn't referencing a policy the firm had in place, it serves as a warning that some workers may not embrace directives to keep wearing face masks, even from employers.

Jonathan Segal, who leads Duane Morris LLP's human resources training arm and was a member of a U.S. Equal Employment Opportunity Commission task force that produced a report in 2016 on harassment in the workplace, told Law360 employers could look to existing frameworks for handling harassment claims if situations arise in which workers fail to follow new safety measures like wearing masks — or go too far in voicing opposition.

"From the management side, what do you do if you see someone not wearing it? Borrowing from #MeToo: See it [and] ignore it is complicity, and here the consequence could be death," Segal said, adding that managers "need to respond in the moment" by inquiring into why a person has failed to follow the policy and tailor their response based on the reason given.

As is the case when employers handle #MeToo and other types of harassment cases, Segal said managers should be trained not to sit on reports by employees that one of their colleagues isn't, for example, wearing a mask and potentially creating a risk for their colleagues.

And once a potential safety hazard is reported, the employer should investigate the conduct and take corrective action as warranted "to remedy the wrong and prevent future harm," he said.

"We say in harassment cases, if someone tells you as a manager you can't keep it to yourself, you need to report it to a designated person," Segal said. "If someone in the workplace is potentially creating an infection control risk that could have life and death consequences, you can't ignore it."

Labor Law May Apply

Yet under the National Labor Relations Act, employees in both union and non-union workplaces have the right to engage in concerted activities for their "mutual aid or protection," including, for example, group protests.

If multiple employees protest the wearing of masks or other safety measures, their actions could be shielded by the federal labor statute, according to Hugh Murray, a partner at McCarter & English LLP.

"As we reopen in the COVID-19 world, some employees are certainly likely ... to say 'I don't want to wear the mask' or 'I don't want to do this safety thing,'" Murray said. "If two or more of them complain together, yes, it's protected activity. But that has only certain consequences and protections."

Of those consequences, Murray said employers would be well within their bounds to send employees home and not allow them back until they are ready to follow the rules that have been put in place or until the rules change. But businesses could land in legal trouble if they fire anyone for engaging in such activity.

"There's not a requirement that the employer allow people to work in an unsafe manner, but the employer can't take retaliatory action against somebody for having raised the concerns," Murray said.

"But where the employer would get in trouble is when the employer says, 'Well, then you're fired and we're never going to bring you back,' because then the argument would be that you're firing someone for engaging in protected concerted activity," he added.

Should a case alleging a labor law violation ever make it to the National Labor Relations Board, Murray noted the NLRA is generally considered to be "substance-neutral," meaning the board doesn't usually try to step in and dictate what the "right answer" is to a dispute, but rather leaves it to the parties to figure out.

"It's not the substance or the 'who's right and who's wrong' on any particular issue that the NLRB tries to get involved with. It's more a process issue," Murray said. "I suspect that if this comes up, the employer will be quite irritated that the employee is trying to ... undermine the operations and the safe reopening."

Social Media Monitoring Poses Risks

Although Schroeder said the situation involving Thompson & Knight "is an extreme" example of social media behavior that can't be ignored by an employer since it involved threats of violence, most social media complaints by workers, including criticisms of workplace safety policies, likely won't be things that businesses can or should address.

"I don't believe that employers should engage in police powers and monitor social media activity across the board of all its employees," Schroeder said. "Then you're almost accepting the responsibility to monitor it across the board. And the line is a little blurry sometimes."

McDonald Carano's Gallagher offered a similar sentiment, saying employers monitoring what workers do while off duty "gets into sort of a sticky area" since many states have laws in place that protect employees over what they do while not at work.

Schroeder noted that low-level gripes on social media platforms are likely in the weeks ahead since people "are not going to be happy about changes in the workplace that they're going to have to deal with" beyond wearing masks, like new rules for getting on elevators or having their shifts staggered to thin out workplaces at any given time.

But ultimately, if workers engage in some social media grumbling to express discontent with new safety precautions, Schroder says the level of attention employers should pay will likely hinge on the "context of what's said, how it's communicated and how much of a reference is made to the employer."

"If somebody is critical of a policy in and of itself, I don't know that that rises to a level of disciplinary action," Schroeder said. "In some respects, it's how much publicity you get and whether or not [a post] reputationally does some damage to the employer. That certainly may factor into whether or not somebody gets disciplined."

Keep Politics out of the Conversation

Besides workers outright failing to follow safety measures, Segal noted that a related problem may arise if workers do follow the rules — they wear masks, distance appropriately, stay behind partitions, don't touch colleagues' equipment, and so on — but loudly badmouth the policies.

"We're now talking about the ultimate culture of safety," Segal said. "If someone were to say, 'I'm not going to make sexist or racist comments, but I think this is all bullshit,' to me by their statements they're undermining [and] having a negative impact on the culture. People are going to be more uncomfortable around them."

While Segal said no action that employers take in this area is risk-free, they should at least try to stay out of political discussions and defuse situations as best they can.

"If I were an employer that had these, I'd say to the employees, 'Go home for the day and we'll pay you. But tomorrow it needs to stop.' Try to deescalate it [and] do not go into the politics," Segal said. "And when someone says this is left or right, or this is pro-Trump or anti-Trump, the answer needs to be, 'We're not talking about the political environment; we're talking about the working environment. These are our rules, and if you want to work here, you need to comply with them.' Try to de-escalate and depoliticize."

--Editing by Philip Shea and Brian Baresch.

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