Many jurisdictions require individuals to wear face coverings in public spaces, including in retail businesses, because of the COVID-19 pandemic. But some customers have been refusing to comply. How should a retail business respond to a customer refusing to wear a mask, and what should it do to minimize the chances of hostile incidents occurring?
Customers and employees have no constitutional free speech rights in a private business or workplace. The First Amendment to the U.S. Constitution protects an individual’s right to free speech from infringement by the U.S. Government — not a private business. Similarly, state constitutions do not create such rights.
Title III of the ADA governs the accommodation requirements for guests with disabilities at facilities deemed places of “public accommodation.” Generally, a public accommodation is an entity that provides services to the public, such as lodging, dining, shopping, or medical services. Usually, this takes the form of allowing functional access to the public accommodation (i.e., ramps, elevators, sufficiently wide aisles, and so on).
Title III mandates that public accommodations cannot deny equal enjoyment of goods and services to individuals with disabilities. If a customer has a medical or disability-related condition that may require an accommodation, then the entity must consider the reasonable accommodation it can offer the customer. A customer must advise the business they need an accommodation if it is not obvious. While an employer can and should request appropriate medical documentation when an employee requests a workplace accommodation, that same right may be more restricted, and not best practice, with respect to accommodation requests from a customer under Title III.
Accommodations can take many forms — but there are limits. A business need not accommodate someone if doing so would impede the business’s ability to safely provide its goods and services. Under current Centers for Disease Control and Prevention (CDC) guidance, allowing unmasked members of the public into business establishments creates a health and safety risk. Moreover, COVID-19 is spread by persons who may be asymptomatic, and who possibly have no idea whether they carry the virus. As a result, customers are required to wear masks or other suitable face coverings (e.g., bandana, face shield, and the like) under state and local ordinances mandating masks.
Under these circumstances, businesses have a good faith basis to not accommodate an unmasked member of the public — although, no-contact shopping alternatives should be considered and communicated to the customer where a disability is involved.
Unfortunately, masking has become more than a health and safety concern. Across the country, reports abound of security guards and other retail employees confronted with increasing violence while trying to enforce mask requirements. Similarly, restaurant workers repeatedly have been met with violence when asking patrons to wear a mask.
Under the Occupational Health and Safety Act, employers have a duty to provide a safe workplace for employees. Businesses should consider the impact threatening customer encounters on their premises could have on the safety of their employees and customers, as well as business operations. Some practical steps businesses can take include the following:
The U.S. Marine Corps has a slogan: “Improvise, Adapt, and Overcome.” If there was a slogan for business in 2020, it is hard to think of one better suited. Businesses can plan and prepare their responses to customers who refuse to follow mask requirements, as well as any confrontations that may cause.