Las Vegas POA

Q & A

Written on 09/01/2020
Will Aitchison

From Arizona:
Question: I was wondering if you had any case law specific to masks and religion or anything you could point me to that predates the pandemic? Any help would be greatly appreciated.

Answer: I’m unaware of any cases on masks and religion. From analogous cases, I can predict how such a case would likely come out.

There are a number of religious discrimination cases involving grooming (e.g., hair styles, beards), clothing (e.g., women and pants), and accessories (e.g., jewelry). With one exception, courts have upheld those sorts of regulations. For example, a federal appeals court upheld the discharge of a Texas officer who refused to remove a small cross from his lapel, and other courts have upheld requirements that officers shave and cut their hair. The rationale of the courts is pretty much always the same – law enforcement employers have tremendous latitude in their ability to control how officers present themselves to the public.

The one deviation from these principles is if the employer has not uniformly enforced its rules. For example, there is a Newark case where the employer allowed officers exceptions from its “no beards” policies if they suffered from pseudofolliculitis barbae but refused to allow Muslim officers to wear beards. A court held that the inconsistent practice violated Title VII’s prohibition on religious discrimination.

So, with that backdrop, my prediction is that employers will be allowed to require officers to wear masks even over religious objections. The question will then become whether the employer will have to reasonably accommodate an objecting officer by assigning him/her to a position where a mask is not necessary. It’s hard to predict how that will come out, but my guess is that with the increasingly overwhelming evidence that masks prevent the spread of COVID-19, a court will defer to an employer’s judgment as to whether such positions exist.

From Nevada:
Question: Our Sheriff announced his intention to implement a CAB. He stated the CAB would not have input on discipline or policy, but as I understand this is the sole purpose of a CAB (at least the most important). Is the creation of a CAB a mandatory topic of bargaining as it relates to policy creation as well as discipline?

Answer: In most states the creation of a CAB along the line you’re suggesting would not be mandatorily negotiable. Policies created by the CAB, to the extent they have disciplinary implications, would be mandatorily negotiable.

However, you’re from Nevada, which has a statutorily limited number of topics that are mandatory for bargaining. As such, we’d recommend you check with local counsel for advice on the issue.

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