Worker safety has been a top priority for hospitals, grocery stores, pharmacies, gas stations, banks and other essential businesses that have stayed open during the coronavirus pandemic. As states begin to lift restrictions, those same concerns will be shared by more and more businesses as they reopen. Nearly half of U.S. states have now announced plans to ease lockdowns meant to stall the spread of Covid-19, allowing different types of businesses to begin reopening.
What will happen to workers who refuse to abide by their employer’s COVID-19 safety policies?
Can you be denied Workers’ Compensation benefits for refusing to wear a mask?
Consider the following scenario. Suppose an employer implements a strict requirement that employees must wear a mask while at work to protect co-workers and customers. Assume that one employee repeatedly ignores the rule and eventually becomes sick with COVID-19, then later brings a workers’ compensation claim. Can the workers’ compensation insurance carrier deny the claim based on the employee’s willful failure to wear his mask?
The answer is probably yes, because most states have a law that bars claims arising from an employee’s own fault. In New Hampshire, RSA 281-A:14 “Employee Fault,” says that “The employer shall not be liable for any injury to a worker which is caused…by the serious and willful misconduct of the worker.” Moreover, it seems that the NH Supreme Court would uphold such a defense, since the court made clear in Appeal of Phillips that the Section 14 defense could be raised when there is a causal relationship between the employee’s fault and his resulting injury. See, Appeal of Phillips, 75 A.3d 1083, 165 N.H. 226 (N.H. 2013).
So, in the situation where a worker willfully refused to comply with the employer’s safety requirements, then later contracted COVID-19 at the workplace, the insurance carrier would likely have a valid basis to deny the claim under the Employee’s Fault defense. However, for that defense to work, the employer must have uniformly enforced its safety requirements that all employees wear a mask at all times. Moreover, the employer would have to properly document that despite repeated warnings, the employee willfully failed to wear a mask, and that conduct led to his contracting COVID-19.
Can you be fired for refusing to wear a mask?
A related question in this scenario is whether the employer can terminate a worker who refused to use required protective devices. For non-union workers, firing an employee for failing to wear a mask would almost certainly be permissible. That’s because an employee’s refusal to follow his employer’s directive would be considered insubordination, and insubordination is subject to discipline, including termination. Employers who are concerned about their potential liability for terminating employees should clearly publish a zero-tolerance policy and characterize the refusal to comply with the safety requirements as a serious workplace infraction that may result in termination.
Of course, there are always going to be exceptions. For workers with certain health conditions that prevent them from being able to wear a mask, the employer may have to provide reasonable accommodations. In fact, this is an exception noted in the NH Supreme Court’s recent Order requiring masks be worn by all visitors to NH courthouses. For this class of workers, the employer may need to address whatever the underlying disability is which precludes mask use just as it would for any disability. The employer must then determine whether it can make adjustments that accommodate the worker’s health problem while maintaining a safe working environment.
If you have questions about COVID-19 in the workplace, please contact us.