Face It, Face Covering Policies Do Not Muzzle First Amendment Rights

CATEGORY: Blog Posts
CLIENT TYPE: Public Education, Public Employers, Public Safety
PUBLICATION: California Public Agency Labor & Employment Blog
DATE: Oct 08, 2020

Masks and face coverings have become part of the “new normal” for everyday life since the coronavirus pandemic began.  As worksites continue to reopen across California, public employers have implemented face-covering policies based on recommendations and guidance from the Centers for Disease Control and Prevention (CDC), Occupational Safety and Health Administration (OSHA), Equal Employment Opportunity Commission (“EEOC”), as well as state and local governments, in order to curtail the spread of COVID-19.

For public employers, this “new normal” may give rise to constitutional challenges stemming from a public employee’s refusal to comply with such face covering policies because:

(1)       it supposedly violates his/her First Amendment right to speech, expression, assembly, and association; and

(2)       it is perceived as a threat to his/her personal liberty.

For example, an employee may claim that forcing them to wear a face covering is synonymous to being forced to wear a muzzle in the workplace, thereby making it impossible for them to communicate freely.  In addition, given the political divide among Americans over the pandemic (with some political groups going as far as viewing the pandemic as a hoax), an employee might view face coverings as political symbols designed to compel them to “speak” in a certain manner.  Further, in light of the upcoming November election, these employees may claim that their refusal to wear a face covering is an “expression” of their political views by showing opposition towards a particular political group’s viewpoint on the pandemic.

However, as set forth below, face-covering policies implemented during these unprecedented times do not “muzzle” any First Amendment rights of a public employee.

First Amendment Implications:

A public employee’s challenge against the use of face coverings in the workplace does not implicate the First Amendment.  Generally, the First Amendment protects an individual’s freedom of speech and association and free exercise of religion.  However, a public agency’s policy requiring that employees wear face coverings is not intended to restrict speech or suppress expression – instead, these policies are generally applicable and are intended to promote the health, safety, and welfare of employees and the public.  These policies do not prevent employees from freely expressing their ideas, nor do they compel “speech” in any way.

First Amendment Rights are Not Absolute:

Indeed, although a public employee may claim that face covering policies impede on their First Amendment rights, those rights are not absolute.  Longstanding case law has reinforced a public agency’s right to protect the health and safety of the public by requiring its employees to wear face coverings, unless an exemption applies.  For more than a century, the United States Supreme Court has recognized that a community has the right to protect itself against an epidemic, which threatens the safety of its members.  In the 1905 case Jacobsen v. Massachusetts, the Supreme Court upheld the state’s smallpox vaccination requirement during an outbreak and allowed the state to impose a fine on those who did not comply.  In upholding the law, the Supreme Court determined that the state retains the authority to enact reasonable measures to safeguard the public’s health and safety.

The same can be said for an employer’s face covering policy.  Under Jacobsen, public agencies are permitted to take more restrictive measures than they would normally in order to achieve the goal of protecting citizens from a pandemic.  Based on Jacobsen, courts will likely hold that a public entity has a compelling interest in taking emergency measures to protect health and safety through its enforcement of face covering policies in the workplace.

The Supreme Court’s decision in Jacobsen is now more relevant than ever in today’s society due to COVID-19.  In order to mitigate the spread of COVID-19, state and local governments have mandated the use of face coverings.  A public agency’s face covering policy that requires its employees to wear a face covering in the workplace should not violate First Amendment rights where the purpose is to protect the health and safety of others.  As such, a public agency’s ability to enforce a face covering policy that is generally applicable to its employees would likely be found by a court to outweigh an individual worker’s free speech rights.

Issues pertaining to free speech rights can present complex legal questions for public employers.  Public employers should seek advice from legal counsel when approaching these issues.

We have previously authored a blog post on issues that public employers may face with employees who challenge COVID-19 precautionary measures.  This blog post can be found here.

This article was originally published on LCW’s California Public Agency Labor & Employment Blog. You can read other articles and explore our blog by visiting calpublicagencylaboremploymentblog.com.