Learn more about enforcing face masks for both employees and customers, and relevant legal information.
As small businesses around the country begin to reopen, owners are taking precautions, following guidelines, and doing everything they can to keep their workers and customers safe.
But what happens if your employees or a customer refuses to wear a mask? Whether or not you can require face masks for both employees and customers depends on individual state and local orders.
However, bear in mind that both the Occupational Safety and Health Administration (OSHA) and the CDC strongly recommend them — and requiring face mask usage is becoming more common in areas around the country.
See article: Which States Require Face Masks
If an employee refuses to wear a mask, the best first step is to explain the reasons for the mask and point to state or local requirements and guidelines.If an employee refuses to wear a mask, the best first step is to explain the reasons for the mask and point to state or local requirements and guidelines. However, if the employee continues to refuse, you can suspend the employee. Be careful here because there are some gray areas. In some instances, a worker’s disability may not allow them to safely wear a mask.
If this is the case, employers need to follow the Americans with Disabilities Act guidelines to verify a disability that prevents the worker from wearing a mask. As you can imagine, this is very delicate territory, and ideally only a qualified HR representative should be handling these circumstances.
Can I enforce a mask policy for customers?
You certainly don’t have any HR files on who enters your place of business, but you can require face masks of your customers. Make sure you have clear signage that details your mask policy for customers on the outside of your business as well as the interior.
Small businesses do have the authority to ask customers to leave if they ignore the mask requirement. In most cases, customers will leave without causing a scene, but there are some isolated incidents in which customers have demanded to stay — mask free. Every situation is unique, and it’s up to the manager or business owner to decide whether to involve local authorities in these cases.
Can I get sued if I enforce a mask policy in my business?
We’re in unprecedented waters so there’s no clear answer. Most attorneys are saying that it’s unlikely for lawsuits to go anywhere, but it is possible. A lot of people have compared the mask policy to the no shoes, no shirt, no service policy that’s common in establishments. New York Governor Andrew Cuomo recently said: “You don’t have a right to walk in a store and cause all the other patrons to run out because you’re not wearing a mask.”
Your rights as a business owner are dictated somewhat by state and local ordinances, so it’s always a good idea to have an HR representative on your side who’s aware of the ever-evolving laws around reopening during COVID-19. Ultimately, businesses are usually free to tell their customers that they must wear a mask to get and stay inside.
Your rights as a business owner are dictated somewhat by state and local ordinances, so it’s always a good idea to have an HR representative.
Refusing entry or service is a right businesses have had since the beginning of commerce in the United States, and some experts are likening the mask policy to not allowing smoking indoors. One customer’s “right” cannot put at risk the health of every other customer and employee in the store.
Of course, the ADA also has laws in place for customers with disabilities. Someone who physically cannot wear a mask does have the right to sue a business that turns them away. That’s why many businesses have a mask exemption for young children and those whose health are at risk when wearing a mask. But you cannot necessarily tell if a person is “mask exempt.” There are also some people who falsely claim they should be exempt simply because they don’t want to wear a mask.
So … what happens if I am sued?
Again, it’s too soon in the pandemic for there to be a legal precedence. Right now, nobody knows exactly what would happen if someone sues a business for discrimination based on their mask policy. The potential damages are unclear. If your small business has a customer who refuses to wear a mask, the best recourse is to call local authorities — and perhaps work with your local government to help buttress mask policies to protect small businesses.
This issue comes down to the fact that while small businesses are perfectly in their right to require employees and customers to wear masks, actually enforcing that policy is a lot tougher. A common misunderstanding around the mask policy is that it violates First Amendment rights.
Businesses are on private property and have been throughout recent history. First Amendment rights do not apply to others’ personal property.
However, constitutional lawyers are quick to point out that businesses are on private property and have been throughout recent history. First Amendment rights do not apply to others’ personal property — which is why you also don’t have the “freedom” to patronize stores completely nude (well, outside of nude resorts). On private property, including business property, violation of the rules is a violation of the business’ rights.