North Carolina businesses take note: face coverings (i.e., masks) are now required.
That means all North Carolinians should review and understand the new statewide face covering requirements, implemented by Executive Order (EO 147), which is explained on the governor’s resource pages here, here and here. Starting at 5:00 pm on June 26, 2020, people in North Carolina must wear “face coverings” when in many public places — indoor and outdoor — where they will or may be within 6 feet of another person. This means that unless an exception applies, employees and customers at nearly every business currently operating in the state must wear face coverings. So, if you want to operate legally and enjoy the limited immunity from COVID-contraction claims available to many businesses, you should take care to follow EO 147 and insist that employees and customers wear face coverings.
Here are answers to some key questions businesses should consider:
What is a “face covering”?
A “face covering” is any covering of the nose and mouth that is secured to the head. It can be made of a variety of fabrics and “ideally” has two or more layers.
Are “face coverings” required everywhere?
Not everywhere — but they are required in most places of business. If you are among the businesses currently permitted to operate in NC, EO 147 requires “face coverings” if one person may be within six feet of another and if no exception applies. By its terms, this is not a mask order, like Raleigh’s proclamation or Greensboro’s proclamation, which require everyone to wear masks in all public and private spaces where other people are present. But the practical and intended result appears to be the same since the vast majority of North Carolina businesses cannot ensure that people stay six feet apart.
EO 147 lists the following places where face coverings are now required: retail businesses, restaurants, hair salons, tattoo businesses, child care facilities, day camps, overnight camps, state government workplaces, manufacturing settings, construction sites, agricultural settings, meat processing plants, long-term care facilities, and public or even some forms of private transportation, such as ride-shares or cabs. Notably, “retail business” is broadly defined to include any business in which customers enter a space to purchase goods or services. This definition is broad enough to capture most businesses that are currently operating. Also, certain businesses including long-term care facilities require specific, more protective face coverings, i.e., surgical masks.
Given these definitions, it is difficult to conceive of a multi-person, operating business where it would be impossible for people to come within six feet of one another. As a result, if you currently operate a business, the face covering order probably applies to you. But there are exceptions (discussed below).
My business is a pure office setting with no customers (e.g., law firm or corporate headquarters), are face coverings still required?
It depends. Again, “Retail Business,” is broadly defined to include “any business in which customers enter a space to purchase goods or services.” Whether a pure office setting is a retail business may depend on your point of view. If customers or clients are ever permitted to enter your office environment, the safest course is to follow EO 147 and require face coverings. If, on the other hand, your business is limited to employee traffic only, then EO 147 technically does not apply. Note, however, that the Guidance issued by NCDHHS in conjunction with EO 147 suggests a much broader application. According to the Guidance: “People must wear face coverings when in public places, indoor or outdoor, where physical distancing of six feet from other people who are not members of the same household or residence is not possible.” Thus, regardless of the type of business you operate and regardless of whether customers enter your space, employees who are not able to maintain appropriate distance from one another should be strongly encouraged (if not required) to wear a mask.
Do I have to require employees to wear face coverings?
Probably. If your business falls under the broad definitions of “retail business,” “restaurant,” “personal care business,” “child care facilities, day camps, and overnight camps," or your employees are in a manufacturing, construction, or retail setting, and any combination of customer and employee may come within 6 feet of each other, you must require your employees to wear masks. Remember: these industries are defined very broadly, so businesses thinking the face covering requirement does not apply to them should think twice.
Even if you can somehow ensure people stay six feet apart (e.g., physical barriers) and believe you can avoid the face covering requirements of EO 147, remember: NC’s Phase II Order (EO 141), makes clear that face coverings are still “strongly encouraged.” Furthermore, the other requirements of the Phase II Order (e.g., social distancing, employee screening, occupancy limits, etc.) still apply to all businesses with full force until the expiration of Phase II, on July 17, 2020 (unless it is extended).
The safest course of action to avoid fines, keep employees and customers safe, and guard against potential COVID-contraction claims is to require your employees to wear face coverings — especially if you cannot otherwise prevent them from coming within 6 feet of others (e.g., through physical barriers).
What if my employee refuses to wear their face covering — claiming they have trouble breathing — must an employer verify the condition or ask for medical documentation?
As discussed in more detail below, one of the exceptions to the face covering requirement is if someone simply and subjectively claims they have trouble breathing with the mask. Under EO 147, employers are not required to verify an employee’s subjective claim that they are covered under this exception. In fact, the Order suggests employers should not require an employee to provide documentation or other proof (“Anyone who declines to wear a Face Covering for these reasons should not be required to produce documentation or any other proof of a condition.”). So, under state law, an employer can simply take employees at their word that an exception applies. At a minimum, however, employers should be careful to document the claimed exception (to help if authorities ever challenge the business’ compliance with EO 147). Businesses should also take reasonable steps to prevent an unmasked employee coming into contact with others.
What if an employer wants documentation before agreeing to excuse an employee from wearing a face covering?
This question introduces legal issues beyond EO 147. As noted above, EO 147 suggests that an employer should not request and that an employee need not provide such documentation. Federal law, on the other hand, does allow employers to require documentation when an employee cites a health reason for avoiding a workplace requirement. Under the federal Americans with Disabilities Act (“ADA”), if a disability or the need for accommodation is not obvious, an employer may ask an employee for reasonable documentation about their disability and functional limitations. So, if an employer decides to make wearing a face covering a requirement of the position (independent of EO 147), federal law allows the employer to insist upon appropriate documentation before granting an exception to the face covering requirement. As a result, an employer that wants to insist on face coverings should ground its policy on face coverings as an essential job function, not merely a new work rule caused by the need to comply with EO 147. Doing so will allow the employer to require evidence of a health reason to avoid mask-wearing, even though EO 147 says employers should simply take employees at their word.
Do I have to supply my employees with face coverings?
No, but you should. The Order does not specify who must supply the face coverings, but a best practice certainly would be to provide them to employees as new essential workplace attire.
Can I fire or furlough an employee who refuses to wear their face covering?
In theory, yes, in some circumstances. As a general rule, an employer can fire or furlough an employee who engages in insubordination by refusing to wear a required mask. However, an employer still must work through the myriad general termination-related issues (ADA, FMLA, Title VII, etc.) to be sure the firing or furlough does not violate the employee’s rights or entitlement to unpaid leave or accommodation. But, as a technical matter, refusing to wear a face covering can be employee conduct that leads to discipline and even termination.
Do I have to require my customers wear face coverings?
Probably. Remember: subject businesses are defined very broadly, so if your business is open to customers, you probably must require your customers to wear masks unless an exception applies.
Do I have to supply customers with face coverings?
No; however, as with employees, it certainly is not a bad idea to have extra face coverings available for customer use.
If a customer claims an exception (e.g., they have “trouble breathing” with the face covering), does the business have to verify or see documentation?
No. Businesses are not required to verify that a customer is telling the truth about the applicability of an exception. Instead, EO 147 says that “North Carolinians will be on the honor system” to tell the truth. In addition, businesses should not require a customer to provide documentation or other proof of their claimed exception. (“Anyone who declines to wear a Face Covering for these reasons should not be required to produce documentation or any other proof of a condition.”). Lastly, EO 147 says that it is not a violation for the business to rely on customers' or patrons’ statements of exception. For all these reasons, under EO 147, a business can and should simply take customers at their word that an exception applies, and should not ask for supporting documentation.
If a customer invokes an exception and cannot or will not wear a mask, must I permit entry?
No. A business may choose to accommodate a customer and offer curbside service or home delivery or other reasonable measure to deliver its goods or services to the customer who cannot wear a mask, but this customer accommodation is not required.
What additional steps should a business take when granting entry to unmasked customers (claiming exceptions)?
At a minimum, we recommend as a best practice that businesses have a site-specific policy and procedure that documents each instance in which an unmasked customer claims the exception. For example, an employee could be stationed at the entrance to inform all customers of the mask requirement. If a customer invokes an exception, the employee can then document this by simply identifying the customer – perhaps only by first name or description, and the exception invoked. This documentation would protect the business from potential prosecution for failing to follow EO 147.
But documenting may not be enough. Businesses may not want unmasked customers milling about, and they should consider additional measures to keep employees and other customers distanced from unmasked customers. Creative solutions are as numerous and varied as the types of businesses that are operating. Written and visible warnings upon entry, directing customers to certain areas and away from others, escorts, and other steps can be taken. The guiding principle should be to keep both employees and customers safe.
What if a customer refuses to wear a mask and refuses to leave?
EO 147 explains that the business may call law enforcement to enforce criminal trespassing and other general laws — which would involve removing the person.
What are the exceptions?
Businesses should familiarize themselves with all eleven exceptions to the face covering requirement. No individual, worker, customer or patron is required to wear a mask who:
- Has a medical or behavioral condition or disability (e.g., trouble breathing or is unable to put on or remove without assistance).
- Is under 11 years of age;
- Is actively eating or drinking.
- Is strenuously exercising.
- Is seeking to communicate with someone who is hearing impaired – so they can read your lips.
- Is giving a speech for broadcast or to an audience.
- Is working at home or in a personal vehicle.
- Is temporarily removing face covering to secure government or medical services or for identification purposes.
- Would be “at risk” from wearing a face covering at work, as determined by government regulations or workplace safety guidelines.
- Has found that the face covering impedes visibility to operate equipment or vehicle.
- Is a child whose parent/guardian has been unable to safely put the face covering on the child’s face.
What happens if a business fails to follow EO 147?
Under EO 147, state and local law enforcement are empowered to enforce face covering requirements, and violations are a Class 2 misdemeanor. Importantly, however, only businesses (not people) can be prosecuted for failure to comply. So, a police officer could not write a citation to a mask-less person hanging out in the lobby, but could cite the business owner for not requiring that person to put a mask on before entering.
More broadly, the face covering requirement in EO 147 and other requirements in COVID-related orders (e.g., limits on occupancy, etc.) have impacted the standard of care applicable to safe business operations. This applicable standard of care will be important if the business ever faces a COVID contraction claim. As discussed in a previous client alert, the limited immunity from COVID contraction claims for certain businesses extends only to ordinary negligence claims. Businesses are not immune from liability if they were grossly negligent or acted intentionally. Plaintiff’s lawyers almost certainly will argue that willful disregard of face covering orders constitutes gross negligence — thereby abrogating immunity. Thus, the safest and best approach for businesses is to do their very best to comply with these orders, as well as to employ other COVID-related litigation risk mitigation strategies.
Additional Resources:
Additional resources on Phase II and EO 147 compliance, including more FAQ’s and other guidance, is available on the Governor’s Phase II FAQ Page.
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