How Should Restaurants & Businesses Approach Those Who Do Not Wear Face Coverings

May 23, 2020

Due to COVID-19 coronavirus precautions, in many areas of the country and here in San Diego, it is now mandatory to wear a facial covering when entering into public spaces, open businesses, or coming within 6-feet of a non-household member. As businesses begin to reopen, many are apprehensive about possible legal repercussions of denying entry to anyone refusing to wear a face mask. We break down the issue here and offer advice on best practices.

San Diego County has recently allowed in-person dining and shopping, although face coverings and physical distancing are required for employees and patrons entering these businesses. In restaurants, a facial covering is required until the customer is seated, as well as when they leave the table. San Diego restaurants, food, and beverage providers seeking to reopen must review the guidance from San Diego County and complete the San Diego Restaurant Operating Protocol, posting it on premises prior to reopening. All other businesses reopening are also required to complete San Diego County's Safe Reopening Plan and post at their entrance. There are also state-issued documents for more specific industries, such as the retailer guidance and checklist.

The progression of the COVID-19 pandemic has resulted in health experts' shift toward encouraging those entering public spaces to don face coverings as a means of preventing the transfer of the virus. Since many areas around the country have made this a mandate, businesses are permitted to refuse entry to those not wearing a face mask, including here in San Diego. Establishments are now facing the issue of how to enforce the face mask requirement for employees and customers alike. Navigating this new arena presents a whole host of potential legal hurdles, including possible lawsuits under the federal Americans with Disabilities Act and state legislation like California's UNRUH Civil Rights Act, California Fair Employment and Housing Act, and the California Disabled Persons Acts - all which prohibit limiting access and/or discriminating against persons with a protected disability.

As of May 1, San Diego County requires people to wear face coverings in most public settings. In general, people must wear face coverings anywhere they will come within six feet of others. This includes waiting in line to go inside a store, shopping in a store, picking up food at a restaurant, dining at a restaurant except when seated, waiting for or riding on public transportation, riding in a taxi or other ride service vehicle, seeking health care, and going into any business/facilities. Face coverings are not required when at home, in the car alone or with members of the same household, for children under 2 years old, for residents with a health condition that prevents wearing a mask, or when swimming, walking, hiking, bicycling or running by yourself or with other household members. Businesses must require their employees, contractors, owners, and volunteers to wear a face covering both in the workplace and when performing work off-site and they must inform customers about the need to wear a face covering, including posting signs and advising those in line or inside the premises. Businesses must refuse service to anyone not wearing a face covering, unless the customer has a health condition that prevents it or is under 2 years of age.

A face shield like that pictured here could be
an appropriate alternative for someone
claiming they cannot wear a face mask. 

San Diego businesses are required to mandate employees wear face masks. If an employee reports that he or she has a medical condition that makes it so they cannot wear a facial covering, this would trigger the business' legal obligation to request documentation permitted under anti-discrimination laws. The business should offer to send the employee home pending completion of the interactive process required under the Americans with Disabilities Act. As part of this process, the employer may request additional information and medical documentation from the employee regarding the alleged medical condition making them unable to wear a face covering. Upon receiving the additional documentation, the employer should evaluate (ideally with an attorney) whether the employee requires a reasonable accommodation, and if so, what reasonable accommodation works best for the business. If there is a legitimate medical reason for not being able to wear a face covering, reasonable accommodations could include providing the employee an unpaid leave of absence until coverings are no longer required, allowing the employee to work remotely, or offering an alternative face covering that does not interfere with the employee’s medical condition, like a face shield.

This issue becomes more sensitive and problematic when requiring customers to wear facial coverings. For restaurants and retail establishments, this can be uncomfortable, as having to be an authority over adults who should already know better is rarely easy or well-received. There is no simple answer on how this should be addressed, but in San Diego, it may be best to have the printed San Diego Health Order on hand to provide customers who object to wearing a mask in accordance with the countywide mandate.

A card being circulated by anti-maskers.

It must be noted from that outset that, unlike with employees, businesses are limited in what questions and/or documentation they may request from a customer to prove a disability under state and federal law. The best example for guidance here is the service animal situation. With alleged service animals, a business is permitted to only ask two questions - 1) Is the animal a service animal required because of a disability?; and 2) What work or task has the animal been trained to perform? Businesses are not permitted to ask about the person’s specific disability or request documentation. While state and federal discrimination laws generally prohibit places open to the public from restricting access to anyone with a protected disability, usually it is permitted to impose restrictions on those that could be a direct threat to the health or safety of others. As of March 2020, the U.S. Equal Employment Opportunity Commission has declared that the COVID-19 virus meets the "direct threat standard," based on current guidance from the Center for Disease Control, although this standard may change.

Unfortunately, people who do not want to wear a mask for personal and/or political reasons, also known as "anti-maskers", may lie about having a medical condition in order to avoid wearing a mask. If a business or its employees question them on the issue, a savvy customer may claim that asking about the condition is a violation of state and federal laws, and may assert protections under the Health Insurance Portability and Accountability Act (HIPAA). In reality HIPAA only applies to three types of covered entities - health plans, health care clearinghouses, and health care providers, not businesses or its employees.

So what should a restaurant or business do when faced with a customer who is refusing to wear a facial covering? We believe that the businesses should limit itself to one question - "Are you unable to wear a mask because of a disability and/or a health condition that prevents wearing a mask?" If the person responds in the affirmative, we suggest offering alternative service like 'to-go' or curbside service. It may also be smart for a business to keep a few face shields like that pictured above on hand to offer those claiming they cannot wear a mask (only $40 for 10 on Amazon). It would be advisable to keep them in brand new condition and offer them to customers to keep on a complimentary basis. If nothing else, this would demonstrate the business offered reasonable accommodations.

If met with resistance, businesses will then have to weigh their inherent duty to keep other customers and employees safe against risks of civil liability. It should be noted that people without true, diagnosable disabilities are not protected by the Americans with Disabilities Act and similar state civil rights laws, so if there really is no health issue or disability, the person does not have standing to sue. Do keep in mind that underlying issues can include invisible mental health issues, including post-traumatic stress disorder (PTSD). When approaching anyone on the issue of facial coverings, or even social distancing requirements, we strongly suggest doing so kindly and in a non-authoritarian manner. We are all under increased stress in this ever-changing new existence.

San Diego County offers suggested flyers on this issue for posting in both English and Spanish. We suggest local businesses print and post both flyers at entry points, which may be used as an affirmative defense to any future lawsuit. The full San Diego County health order is also available online for businesses to refer to problematic patrons/employees. Good luck navigating this new world.