A municipality can require, by policy or ordinance, that employees wear a face covering while in City buildings and a violation of that policy or ordinance would provide grounds for disciplinary action up to and including termination. It is without question that public employers can impose restrictions on what employee’s wear, including requiring employees to wear certain items of clothing. While there is some question in the aftermath of a recent Supreme Court opinion[i] about dress codes that make gender-based distinctions, the default remains that dress codes are ok unless they somehow violate a right protected by statute or the Constitution.
Freedom of speech extends to expressive conduct.[ii] To implicate the 1st Amendment, the conduct must be inherently expressive.[iii] The mere fact that a person is in City Hall (in a City with a mask mandate, either as to all citizens or as an employment policy) is not inherently expressive activity. They could have forgotten to put one on. They could be exempt from the requirement if exemptions apply. Or they could be making a statement about what they think about mask mandates. An observer would have no idea if the person’s action in not wearing a mask was intended to be expressive unless they asked. “The fact that such explanatory speech is necessary is strong evidence that the conduct at issue here is not so inherently expressive that it warrants protection under O'Brien.”[iv]
Further, the fact that the person may (and likely would) tell everyone that the reason they are not wearing a mask is because they disagree with mask mandates does not convert what is otherwise not inherently express conduct into protected expression. “If combining speech and conduct were enough to create expressive conduct, a regulated party could always transform conduct into ‘speech’ simply by talking about it. For instance, if an individual announces that he intends to express his disapproval of the Internal Revenue Service by refusing to pay his income taxes, we would have to apply O'Brien to determine whether the Tax Code violates the First Amendment. Neither O'Brien nor its progeny supports such a result.”[v] An employee’s refusal to comply with their public employer’s directive to wear a mask while in City hall is not the type of expression that is protected by the First Amendment. They can voice their objection and feelings as to the mask mandate, and that expression may well be protected. But the act of disobedience is not, itself, protected. As such, taking action because of the insubordination would not seem to implicate, much less violate, the 1st Amendment.
Even assuming that the 1st Amendment would be implicated by a requirement that employees wear masks while in City Hall, I’m not sure a Court would find that the requirement violates their 1st Amendment rights. It has long been accepted that, while a person does not surrender their Constitutional rights by accepting public employment, a government employer has more leeway to impose restrictions on those rights than the employer could impose on the population at large as a sovereign government. The government, as a sovereign, can mandate that citizens wear masks while in buildings with other people. It stands to reason, therefore, that if the Government could mandate masks be worn by all citizens while in buildings with other members of the public, that it could do so on a more limited basis as it applies to its own employees while in City Hall.
The Courts apply a highly deferential standard of review to restrictions made in response to a pandemic.[vi] To prevail, a Plaintiff must show that the restriction (1) that it has “no real or substantial relation” to protecting public health, or (2) that it is “beyond all question, a plain, palpable invasion of rights secured by the fundamental law.”[vii] For reasons discussed above, the act of not wearing a mask is not inherently expressive activity as it communicates no message in and of itself. The message (and expression) comes when the person explains why they are not wearing the mask. Requiring an employee to wear a mask does not impair their ability to express what they think about the mask, and certainly is not “beyond all question, a plain, palpable invasion of rights secured” by the 1st Amendment.
Bottom line, there is no 1st Amendment implication in mandating that employees wear a mask while in City Hall, and there does not appear to be a viable basis for an employee to say that being disciplined for insubordination by violating that mandate would somehow violate their 1st Amendment rights. The trend is that courts around the Country are ruling in favor of the government on mask mandates. That includes challenges under the 1st Amendment, but also challenges to mandates that required a person to wear a mask when they exercised their fundamental right to vote. It does not seem likely that an employee could successfully challenge disciplinary action for insubordination if they refuse to comply with their public employer’s rule that masks must be worn.
DISCLAIMER: OMAG attorneys have sought to keep updating this webpage with the most up-to-date information possible. OMAG offers this guidance to help your municipality make informed decisions. You should always consult with your City Attorney before taking any actions based on this guidance. If you have questions or concerns about the information contained in these articles, please email one of the attorneys in the OMAG Legal Department (see https://www.omag.org/legal-services for contact information).
[i] Bostock v. Clayton County 140 S. Ct. 1731, 207 L. Ed. 2d 218 (2020)
[ii] Texas v. Johnson 491 U.S. 39 (1989) (flag burning)
[iii] U.S. v. O’Brien 391 U.S. 367 (1968)
[iv] Rumsfeld v. F. for Acad. & Inst’l Rts., Inc. (FAIR) 547 U.S. 47, 66 (2006) (FAIR)
[v] FAIR, at 66
[vi] Jacobson v. Massachusetts 197 U.S. 11 (1905)
[vii] Id. at 31
