Jan. 20, 2021 – Even though the COVID-19 vaccine is now available, it will take some time to return to normalcy. Businesses will continue to deal with the legal implications of face mask policies. First a quick recap from my prior article, ADA Implications, I Don’t Want To Wear a Mask…:

1. Businesses can require employees to wear masks at work and customers to wear face masks when coming into businesses;

2. Businesses can refuse entry or ask customers to leave if they refuse to wear a face mask;

3. For both employees and customers who say they cannot wear a face mask due to a disability or medical condition, the business can refuse entry, but must engage in the Americans with Disabilities Act (ADA) interactive process. The interactive process is different for employees than it is for customers.

   A. For employees, the business can request medical documentation.

   B. For customers, the business should not ask for medical documentation. Rather, the business may ask limited questions such as whether the individual has a disability and whether the disability restricts him or her from wearing a mask.

4. For both employees and customers, a business should try to provide a reasonable accommodation, but may take into consideration safety issues/concerns and whether the requested accommodation is an undue burden.

Next, what other legal concerns are there for a business with respect to face mask policies? If a business does not enforce a face mask policy, in addition to potential legal implications for failing to comply with state or local mandates, there is a risk of civil or personal injury claims from customers alleging that they contracted COVID-19 while in the business’s facility. 

When enforcing a face mask policy, one of the major issues many businesses face is how to do so safely. As we have seen from viral videos, asking a customer to put on a face mask can lead to threats of legal action, verbal confrontations and even physical altercations or violence.

If an employee is injured during a confrontation with a customer, it will likely qualify as a workers’ compensation claim. Similarly, if the customer threatens or actually spits or coughs on the employee and then, within the next 14 days, the employee has symptoms of or tests positive for COVID-19, there is the possibility that the employee’s illness could qualify as a workers’ compensation injury.

Alternatively, if a customer is hurt during an altercation, there is the potential for the customer to pursue a personal injury case. Finally, there is the risk of a discrimination claim, if the business selectively enforces its mask policy based upon a protected status, such as race, age, national origin, etc., does not properly address disability or religious belief issues, or does not take steps to address a customer or employee whose behavior or comments are discriminatory or harassing.

The best way to limit your exposure to these types of claims is to train employees on your policy, how to communicate your policy and how to address these situations to limit the risk of someone being hurt. The training should address the following:

• The business’ policy on face masks – including your posters and where they are located.

• Understanding business’ ADA obligations – e.g. questions that customers may be asked regarding their reason for not wearing a mask, how to respond if a customer has a disability and understanding that posters/flyers alleging that the ADA prohibits businesses from requiring face masks are false and not issued by the EEOC or Department of Justice.

• Understanding business’ obligations regarding religious beliefs – e.g. questions that customers may be asked, how to respond if a customer states they are unable to wear a mask due to a religious belief and understanding that a religious belief does not provide a blanket excuse from having to wear a mask under the law.

• Determine how the business will enforce the policy – i.e. whether an employee will monitor entrances, whether only certain employees or members of management should be involved in addressing compliance issues with customers, etc.

• Address what employees should do if a customer comes in without a mask – e.g. notify management and other employees before addressing the issue with the customer.

• Remind all employees to be polite and respectful at all times when discussing the mask requirement with customers, even if the customer gets argumentative.

• Methods to avoid conflict – e.g. asking the customer to discuss the issue outside of the store, and not raising your voice even if the customer does.

• Methods to de-escalate conflicts – e.g. being polite, even if the customer is not, having more than one employee present, so if the customer starts verbally or physically threatening one employee, that employee may step back and the other employee can redirect the customer to try to de-escalate the situation.

• Establish alternative methods of providing services/products to a customer state they cannot wear a mask due to a disability or religious belief – e.g. employee gathers products and brings to customer outside of the store, etc.

• Train employees on when and how to contact law enforcement to address compliance issues.

• Understand the proper way to document any incidents and preserve evidence, including incident forms, witness statements, taking pictures of where incidents occurred, and if applicable, securing security videos of incidents.

The list above is not exhaustive – and businesses with additional questions regarding mask policy enforcement should contact experienced labor and employment law legal counsel to discuss how best to resolve such questions.