North Carolina Wants to Make a Big Change to Its Mask Rules. What It Might Mean for You

Mask bans are nothing new. Georgia, for instance, banned masks in 1951 to prevent Ku Klux Klan members from covering their faces in public, a law the Georgia Supreme Court upheld in 1990. North Carolina passed a similar law in 1953, which banned masks but allowed exceptions for things like Halloween costumes and, as of 2020, health concerns. 

However, that looks like it is about to end. The North Carolina Senate recently passed a bill 30-15, along party lines, that would end allowances for public mask-wearing for health reasons. The bill is currently before the House. Like the 1953 law, this is clearly targeted at a specific group–the pro-Palestinian protesters--and includes increased penalties for those breaking the law.

While you may have your opinions one way or another about this proposed law, you need to know if and how this will affect your employees — even if your business is not in North Carolina. At least 18 states have some form of anti-masking laws on the books, and the ACLU recently sent out a notice stating that those states may now try to enforce these laws. In fact, the Ohio Attorney General has already warned universities that masked student protesters could be charged with felonies.

Does this mean employees are prohibited from wearing masks at work?

North Carolina-based employment attorney Ken Gray says it will generally be up to individual employers to determine the rules on their premises. He said to me in an email,

While this Bill, if passed into law, may affect individual employees, it will be up to each private employer in North Carolina as to how much it chooses to have the prohibition on face coverings enforced within its premises. A private employer can allow its employees to wear masks while at work on the employer’s private property.

But Gray warns that an employee who travels to work on public property, or works at a customer or vendor site, could be held in violation of the law. , Gray said that the main purpose is to make it “easier for law enforcement to arrest protesters who hide behind the mask of anonymity to turn a peaceful protest into unlawful activity (e.g., destruction of property occurring during protests).” 

If you really do not want masks in your office, this law could give you the right to ban them from your business. But, Gray warns, there are other laws to consider.

ADA and masking bans

The original anti-masking laws were designed to stop the KKK from hiding behind laws, and no one cared if you wore one in the airport or other public spaces for medical purposes. But they were not very popular and not often seen up until 2020.

Today, medical issues are still a concern. And the Americans with Disabilities Act, which is federal, would likely prevail over this new law, says Gray. He advises: 

If an employee can present a doctor’s note indicating that the employee should be allowed to wear a surgical face mace while at work, the employer should grant that request. Otherwise, it could face a disability discrimination charge in which it will be difficult to prove why granting the employee’s request is such an undue hardship on the employer. If the employee has any type of respiratory condition, the employee would likely prevail in a charge with the EEOC.

Of course, you don’t have to accept an employee’s requested accommodation under the ADA, but you do need to go through the interactive process to find a reasonable solution. And you would probably be hard-pressed to prove in court that a surgical mask was not a reasonable accommodation when the employee’s doctor supported the idea.

If you have masked employees, could this new law cause problems?

Probably not. Gray says it’s unlikely the police will be “chomping at the bit” to arrest people wearing medical masks. But, if you want your business to be mask-free, this law gives you added teeth to prevent masking.

Remember, many states have these laws on the books and generally ignore them. In other words, if you want your employees to be able to wear masks at work, you can still allow your employees wear masks at work. Just tell them not to break the law on their way into the office.