Discipline of Exempt Employees for Face Mask Violations

While employers are beginning the process of returning administrative staff to offices, COVID-19 workplace safety precautions remain a priority. Many administrative employees are exempt from the overtime requirements of the Fair Labor Standards Act, which prompts employer concerns about whether or not they may issue disciplinary suspensions to exempt employees who fail to wear face masks or who do not properly wear face masks. However, employers may issue unpaid suspensions to exempt employees for such violations of the employer’s written policy requiring face masks.

Here are some guideposts:

• Employers may impose unpaid suspension for infractions of workplace conduct rules, such as those prohibiting sexual harassment, workplace violence or drug or alcohol use or for violations of state or federal laws. Serious misconduct does not include poor performance or attendance issues. Violations of mask requirements would be considered workplace conduct rules for which exempt employees can be suspended.
• There must be a written policy in place before beginning to issue such suspensions.
• The rule must be applied to all employees.
• Deductions from the pay of an exempt employee are permitted for suspensions imposed in good faith for disciplinary reasons for infractions of workplace conduct rules.
• Such disciplinary deductions may only be made in full-day increments. In other words, if an employer is suspending an exempt employee, then the suspension cannot be for the rest of the day or a few hours but must be at least a full day.