Q&A: Navigating Mask Mandates from a Legal Perspective

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David Rice

Mask mandate

It’s an interesting time to manage people in any capacity. Political views seem to no longer be something people reserve for their private lives, rather they are ever present and coming to work with them, whether it’s in regards to the latest issues around diversity or what society can do about COVID-19.

Unfortunately, the latter has been politicized in such a way that a segment of society has come to see wearing a mask to prevent the spread of COVID-19 as a political statement. As cities and states institute, fight over and ponder mask mandates, companies around the country are having to take matters into their own hands in an attempt to ensure the health and safety of their employees and customers alike.

To take a closer look at what companies are required to do and what their rights are around masks, I sat down with Elizabeth C. Barrera, an associate with Littler law firm to discuss what needs to be done and how should businesses be coping with this politically charged climate.

HREN: We see mandatory mask orders going into effect at the local level, but not necessarily at state and federal levels. If you’re in an area where it’s not mandatory but you have a company policy in place and a customer refuses to wear a mask, what sort of legal ground does a company have to stand on in refusing service?

Elizabeth Barrera: An increasing number of states and cities are requiring face masks to be worn in public to varying degrees. Even where such measures are not mandatory, employers have a general duty under OSHA to provide a safe workplace for employees, which may include company policies regarding masks and social distancing. Whatever policies a company chooses to implement above those required by law, businesses such as restaurants and retailers should utilize signage outside the stores to communicate to customers what restrictions to expect on the premises.

HREN: This situation can unfortunately put customers at odds with employees concerned for their own safety as well as everyone else. If a customer becomes violent, how should companies react from a legal perspective?

EB: As you note, having businesses and their employees act as de facto enforcers of public health measures presents a significant safety risk that we have seen escalate from confrontation into violence across the country. Where customers attempt to enter the premises without a mask, employers should instruct employees that they may politely ask the customer to put on a mask. However, a dilemma may occur when a customer has been asked, but refuses, to wear a mask and insists on entering the business.  

The employee should, above all, remain calm, discreetly call local law enforcement, and allow the police to handle the situation. While not every call to law enforcement about customers refusing to wear masks can be expected to result in a response by the police, it is the responsibility of the police—not business owners or employees—to keep the peace and respond to threats of violence. My colleague, Terri Solomon, recently wrote an Insight report on this very topic for those seeking more information.

HREN: If employees then do not want to wear masks, are you in the clear to release them for violation of company policy? Could they argue they are being punished for their beliefs?

EB: Generally, according to EEOC guidance, employers may require employees to wear masks during the pandemic and observe infection control practices (such as regular hand washing and social distancing protocols). In addition, employers must provide a safe and healthful workplace under the Occupational Safety and Health Act. However, where an employee with a disability requests a related reasonable accommodation under the ADA (such as modified face masks for interpreters for an employee who uses lip reading) or an employee requests a religious accommodation such as under Title VII (such as modified equipment due to religious attire), the employer should discuss the request, engage in an interactive process, and determine what reasonable modification or alternative exists, if not an undue hardship on the operation of the employer’s business under the ADA or Title VII.

HREN: As we mentioned, it’s largely been left to employees to enforce mask rules. Is there a way for businesses themselves to enforce it legally? Could they revoke rewards points or cancel memberships, for example?

EB: In most jurisdictions, businesses are within their rights – and sometimes are required – to deny service to patrons refusing to comply with public health orders and mandates. However, employers should take care not to put their clerks, waiters, security guards or other employees in the dangerous position of escalating confrontation through mask enforcement.

Generally, businesses are not security experts and lack the training and expertise to direct employees how to react when confronted by a violent patron. For this reason, companies should avoid tasking employees with enforcing mask and social distancing orders. Beyond refusing service, businesses with rewards systems or memberships should refer to those specific policies, as they may be subject to binding contractual provisions relating to the honoring of such programs.

HREN: What are the businesses’ rights around mask mandates? We’ve talked a bit about enforcing mask rules, but what if they don’t want it? It may sound a bit bizarre, but there have been rare cases where we see this. Do they have the right to refuse it? Can they insist customers don’t wear masks the same way businesses can tell people they have to wear them?

EB: Businesses should be mindful that they must keep up with applicable state, local, and federal guidelines and orders, which may indicate the obligation to enforce public health and social distancing measures. Businesses refusing to do so risk re-closure or additional penalties. As one example, Ohio has created a Department of Public Safety Ohio Investigative Unit to ensure that all bars and restaurants in the state follow the required social distancing and public health guidelines, and revocation of liquor licenses are among the potential penalties for failure to do so. Governmental guidelines and orders provide a floor, not a ceiling, for businesses wishing to operate within these jurisdictions. Even in jurisdictions without mask mandates, businesses should not require customers to remove masks upon entry to the premises.