September 20, 2020

Volume X, Number 264

September 18, 2020

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Handling Retail Customers Who Refuse to Wear a Mask

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?

The Founding Fathers Did Not Include Protections for Customers

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.

“Public Accommodations” under Title III of Americans with Disabilities Act (ADA)

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.

Preventing Workplace Violence

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:

  1. Make signage abundant and clear and provide no-contact service delivery where possible. The CDC recommends using verbal announcements, signs, and visual cues to promote social distancing and safety initiatives even before customers enter the building. Restaurants and retail businesses should consider including their phone number for curbside pickup or delivery options on mask signage for customers not wishing to comply with the public health requirements. Businesses also can provide remote shopping alternatives. Many businesses use humor to communicate the necessary message (the internet provides many examples). Another approach is to focus on employee safety and the mandate on the company to provide a safe work environment (i.e., “We want our associates to remain healthy and available to provide you the customer service you deserve, so please wear your mask.”).

  2. When possible, give masks away for free. When a customer attempts to enter a business without a mask on, the business can offer one. This may defuse the situation if the person simply forgot their mask and feel frustrated they need to return home or their car to retrieve a mask before entering.

  3. Train employees on mask policies and procedures. For their own safety, employees should not argue with customers who refuse to wear a mask and potentially escalate the situation. Employees should not attempt to apprehend resistant customers, block customers from entering or exiting the store, or physically force customers to leave. Employees should remain calm, discreetly call security (if possible) or local law enforcement, and allow the police to handle it.

  4. Assign the right person(s) to communicate the message. Staff have different skill sets; some are charming and disarming, while others are whizzes with numbers but have a gruff demeanor. The more pleasant the approach with non-compliant customers, the more likely of gaining compliance. Instead of being demanding with a customer who refuses to wear a mask, try a softer approach (e.g., “Wow, you must be having a tough day today. This whole COVID-19 situation has been hard on all of us. How can I convince you we all just want to get through the day healthy and ready for tomorrow?”). It may not always work, but this is about minimizing the issues when possible.

Takeaway

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.

Jackson Lewis P.C. © 2020National Law Review, Volume X, Number 223

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About this Author

Richard D. Landau Principal New York Metro Labor and Preventive Practices Workplace Training
Principal

Richard D. Landau is a Principal in the White Plains and Albany, New York, offices of Jackson Lewis P.C. He has represented employers in all aspects of labor law and has extensive experience providing employers with strategic advice related to union organizing, negotiations, handling arbitrations and in proceedings before the National Labor Relations Board.

He has negotiated hundreds of collective bargaining agreements in dozens of industries including complex contracts covering over 1,500 employees, and handled over 100 arbitrations running the full gamut of...

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H. Bernard Tisdale III labor & employment attorney Jackson Lewis Law Firm Charlotte NC
Office Managing Principal

H. Bernard Tisdale, III, is the Office Managing Principal of the Charlotte, North Carolina, office of Jackson Lewis P.C. He is engaged exclusively in the practice of employment law on behalf of management.

Mr. Tisdale has represented employers in litigation matters before various state and federal trial and appellate courts, and administrative agencies including the Federal OSH Review Commission, the North Carolina OSH Review Commission, the South Carolina Administrative Law Court, and the worker’s compensation commissions in North and South Carolina.  He regularly represents employers on safety and health matters including advising and defending clients on ADA, FMLA, and workers’ compensation issues, and on OSHA compliance issues involving Federal OSHA and state plans.

Mr. Tisdale has handled a wide-variety of employment matters involving claims such as discrimination based on: race, sex, national origin, age and disability; sexual and racial harassment; wrongful discharge; retaliation; breach of contract; defamation; covenants not to compete and trade secret violations; and violations of the Family Medical Leave Act. In addition, he has extensive experience counseling clients on compliance issues and litigation avoidance strategies and regularly conducts management training programs on various employment-related topics.

Before joining Jackson Lewis in August 2019, Mr. Tisdale spent 24 years practicing management-side employment law with another national labor and employment law firm, where he served as Managing Shareholder of the firm’s Charlotte office for 12 years. 

Mr. Tisdale lives in Matthews, NC with his wife, Kathy, three children, and three dogs.

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Joshua R. Adams Workplace Litigation Attorney Jackson Lewis Charlotte, NC
Associate

Joshua R. Adams is an Associate in the Charlotte, North Carolina, office of Jackson Lewis P.C. His practice focuses on representing employers in workplace law matters, including litigation, preventive advice, and counseling.

Prior to joining Jackson Lewis, Mr. Adams was an associate at a large regional firm representing employers and insurance carriers in workers’ compensation claims before the North Carolina Industrial Commission. He has experience handling general civil defense litigation in a wide variety of matters. 

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704-331-3985