I Don’t Want to Wear a Mask…Part 2: How Businesses Can Enforce the Policy Requirement

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July 24, 2020
Michael Wong
SmithAmundsen Labor & Employment Alert

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With COVID-19 cases surging in numbers, the legal implications of face mask policies for businesses have taken center stage again.

First a quick recap, from my prior article, ADA Implications, I Don’t Want To Wear a Mask…Sign that says Please 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 that say they cannot wear a face mask due to a disability or medical condition, the business must engage in the ADA interactive process. The interactive process is different for employees than it is for customers.
    1. For employees, the business can request medical documentation.
    2. 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 that requires face masks?  The major issue facing many businesses is how to safely enforce a mask policy. 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 to spit or cough 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 if they can show it resulted from that interaction. Alternatively, if a customer is hurt, 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., or does not take steps to address a customer whose behavior includes making discriminatory or harassing comments.

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 list above is not exhaustive—and businesses with additional questions regarding mask policy enforcement should contact legal counsel to discuss how best to resolve such questions.