Best in Law: Masks in Businesses

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What are the Mandatory Face-Covering Requirements?

The headlines and social media posts are viral in a hot minute: Business owner rejects maskless customers and customers angrily threaten to sue.

Maskless patrons take note: Business owners in California have the right to require that you wear face masks under new laws created in response to the COVID-19 pandemic and those that existed before the health crisis.

Even with orders from state and local officials encouraging, and then mandating, face coverings, businesses and customers sometimes treat these restrictions as optional. But, the new guidance makes it very clear that masks are critical to stopping the spread of the virus and narrows exemptions around them.

On Nov. 16, the California Department of Public Health mandated the use of face coverings at all times outside the home, with a few exceptions. Prior to that, the U.S. Centers for Disease Control and Prevention and the World Health Organization recommend using face masks in public to prevent the spread of COVID-19. Several counties across California have enacted county-specific ordinances and guidelines relating face masks in public places, including businesses and restaurants.

Subject to any discrimination laws and the Americans with Disabilities Act, private businesses can create policies on what they allow or do not allow in their business. Businesses have a right to refuse service to customers, except in certain cases, such as refusal due to gender or racial discrimination.

Under the ADA, private businesses also cannot refuse service for customers who physically are unable to wear masks. The ADA is a civil rights law that prohibits discrimination against disabled individuals in public settings, such as a job or school, and in public and private places frequented by the general public. The CDPH requirements made on Nov. 16 allows for the exemption of people with “a medical condition, mental health condition, or disability that prevents wearing a face covering.”

According to the ADA, business owners are not allowed to ask individuals about their specific disabilities or request supporting documentation of a disability. Unfortunately, some individuals abuse the ADA to avoid following the face-covering requirements.

The United States Department of Justice Civil Rights Division – Americans with Disabilities Act website uploaded an alert warning people about fraudulent face mask flyers and postings regarding the ADA and the use of face masks due to the COVID-19 pandemic. Many of these fraudulent flyers and postings include the Department of Justice’s seal. The ADA website clarifies that these postings were not issued or endorsed by the Department of Justice.

Business owners should be wary of customers who make false ADA claims. However, since it is often difficult to ascertain whether a customer has a disability or not, business owners should provide alternate methods of service for those who have legitimate reasons for not wearing a mask, while still protecting employees and other customers. For example, allowing for curbside pick-up of food orders. In doing so, business owners protect themselves from liability, since they are still offering the service, but can maintain their mask requirement policy.

Some counties and cities in California are enacting local ordinances that provide business owners with additional power to enforce mask-wearing requirements in their business establishments. For example, the city of Los Angeles adopted an ordinance, effective Nov. 9, that allows business owners to refuse service or entry to anyone who refuses to wear a face covering.

Other counties, including San Mateo, have issued ordinances imposing fines on individuals who refuse to wear face coverings and commercial entities that refuse to comply with state and county face mask regulations.

Some patrons of businesses and restaurants argue that they have a constitutional free speech right to enter businesses and restaurants without masks. However, constitutional free speech rights do not apply to private businesses since the First Amendment of the U.S. Constitution only applies to government infringement of an individual’s right to free speech.

A business owner who does not comply with the face mask regulations, or allows customers to treat it as optional, may face a fine or citations. Business owners are advised to watch government orders and guidance carefully and to consult with an attorney if they are unclear on whether their actions are in compliance or are discriminatory in any way.

This article first appeared in The Sun and other Southern California Newspaper Group publications online on Nov. 20, 2020. Republished with permission.

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DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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