Face covering and mask policies have caused unrest and inconvenience for many in-person shoppers since the beginning of the COVID-19 pandemic, and continue to provoke controversy. Some individuals believe that these policies infringe on their constitutional rights, while others allege such policies violate the American with Disabilities Act as applied to individuals who are unable to comply with these policies due to a variety of health conditions or disabilities.
In a recent decision, a Pennsylvania federal court refused to enjoin grocery store Giant Eagle’s mandatory face covering policy in light of a shopper’s claim that he suffers from anxiety and has trouble breathing when wearing a mask. Despite previously denying Giant Eagle’s motion to dismiss, Judge Nora Barry Fischer in the Western District of Pennsylvania found a number of flaws with the plaintiff’s argument, leading her to conclude that the named plaintiff was unlikely to succeed on the merits of his claims and deny the requested preliminary injunction.
First, the plaintiff had failed to demonstrate that he had a disability preventing him from complying with Giant Eagle’s policy. On its face, the policy permits consumers to wear a face mask, cloth face covering, or a full face shield, and the plaintiff failed to show that he was unable to wear a face shield. The Court found that the plaintiff’s statements regarding his alleged inability to wear a mask was contradicted by his social media posts asserting that he was able to wear a mask, but has a right to refuse to comply with Giant Eagle’s policy.
Second, the plaintiff’s request for an accommodation to shop without a mask was not reasonable or necessary given the various alternatives provided to consumers. In addition to permitting shoppers to wear face shields as an alternative to masks, Giant Eagle also offered various services to those unwilling or unable to shop in person, including personal shopping services, curbside pickup and home delivery.
Given these two findings, the court did not even need to consider Giant Eagle’s “well-taken defenses that its face covering policy is a legitimate safety requirement during the COVID-19 pandemic and that [the named plaintiff] presented a direct threat to the health and safety of others, including customers and employees.”
With the impending second wave of the pandemic, more retailers are adopting (and state and local governments are imposing) mandatory face covering policies. While litigation is inevitable, this decision provides helpful guidance to consumer-facing businesses to ensure that their policies are sufficiently flexible and provide alternatives for those who are unable to wear a face mask.