As businesses slowly reopen from forced closure and the Stay- at- Home requirements are gradually lifted, business owners find themselves trying to navigate the new guidelines of the State, CDC and OSHA while keeping their clients happy. The mandate for the public to wear masks tends to be the current requirement that is causing the most conversation among business owners and clients. While we may all have our own opinions about the new “rules”, one thing is for certain, until there is a vaccine anyone seems prone to contract and potentially spread the virus. As such, the best way for a business owner to protect themselves from potential claims that they exposed clients to the virus in their establishment is simply to stick to the rules that have been issued it and not make any exceptions.
If the Guidelines require that people entering your business wear masks, then you must make everyone wear masks. If you allow for exceptions, you open the door for others (1) to claim they got sick due to the exception you permitted, and (2) claim some form of discrimination (i.e. because you required one person to wear a mask, but not another). If a lawsuit hits your business, you do not want to be the one trying to explain why you made exceptions. You want to be the one that can prove you carefully followed the Guidelines, without exceptions.
What if the client has a medical issue?
While some customers may claim a personal preference to not wearing a mask, others may indicate some sort of medical condition that requires accommodation on your business’s part. Let’s consider for a moment what the Americans with Disabilities Act (ADA) says. The ADA requires that businesses make “reasonable accommodations” for persons with disabilities, but it has limits. The ADA does not require businesses “to change their policies and procedures in any way that would cause a ‘fundamental alteration’ in the nature of their goods or services, would undermine safe operation of the business, or would cause a ‘direct threat’ to the health or safety of others.” As of March 2020, the EEOC declared the COVID-19 pandemic meets the “direct threat” standard, given guidance from the CDC and public health authorities regarding the risk of community spread and institution of restrictions (note that this standard can change, and it’s important to stay up-to-date on this standard). This means a business would be on good authority to require customers to wear facemasks when entering their premises, but this authority is not absolute.
When faced with a customer who attempts to book an appointment or walks into the premises without a facemask, it would be advisable to institute a process on how to handle such customers. Specifically, you should limit your questions to the following: “Are you unable to wear a facemask because of a medical condition or disability?” Do not ask for proof or ask additional questions. If the answer to this one question is “no,” then you can refuse service because the ADA does not apply. If the answer is “yes,” and you can provide a “reasonable accommodation” for such customers – i.e. providing services after hours or on weekends or in a controlled environment away from other customers and employees – then you should engage the customer in an interactive process to determine whether your reasonable accommodation would fulfill the needs of such customers while keeping everyone else (i.e. mask-wearing customers and employees) safe. This means it would be well-worth thinking of creative options to offer as a “reasonable accommodation,” given the type of business you have, and making it available to such customers as needed.
Whether you have a “reasonable accommodation” option for such customers or you don’t, you would be well-advised to train your employees, create action-plans, and a standard operating procedure to avoid confrontations and/or potential lawsuits. Furthermore, create an incident log that you religiously record the date, time and circumstances involving an incident. Keep this log safe, secure, and confidential. If you find yourself in a lawsuit, you’ll be able to use this log as a “business record” and prove you (1) followed the Guidelines, (2) made no exceptions, and (3) offered “reasonable accommodations” when necessary and available.
Note that this advice changes once the pandemic subsides and the Guidelines change. It’s important to keep informed and up-to-date on the Guidelines.
Want to speak to a Business Attorney about your concerns while conducting business during the COVID-19 pandemic? Business Law Southwest can help. Contact us today.
