NEWS | The Towne Law Firm, P.C. | September 9, 2020
Written By: Christine E. Taylor
As the pandemic progressed and businesses of all types were allowed to reopen multiple states enacted mask mandates, requiring most individuals to wear a mask, and leaving the businesses to enforce the mandate among their employees and customers. Often the mask mandates have contained an exception for those who are two years and younger and those who cannot medically tolerate a mask. But should you let those people who cannot wear a mask into your store? Your restaurant? Your arcade? Would you face a fine if the state came by and saw individuals without a mask? If you did not allow a person in without a mask, could they claim you violated state or federal law regarding disabilities?
As with everything — nothing will really stop a person from suing you. But what is the best practice for these situations?
The Americans with Disabilities Act (ADA) once again comes into play as we address requiring masks among both employees and campers alike. ADA protections are specific to each individual’s disability. In order for a person to be able to bring a lawsuit for a violation of the ADA, they would have to have both a medical condition that is considered a disability and would also need to demonstrate that such a disability is directly impacted by wearing a mask.
The difficulty that arises is generally, with the ADA, you cannot inquire further about what the individual’s disability is when they ask for accommodation at your campground. If someone came into your store, you insisted they wear a mask but they claim to have a disability, does the conversation stop there? Sort of. Currently, the U.S. Department of Justice, nor any other federal agency with authority has provided guidance about whether a business can ask for medical documentation regarding someone’s inability to wear a mask. Previously, the guidance regarding asking for documentation was that where interactions are “brief,” business cannot ask for documentation regarding a disability. Currently, best practices would be that you cannot ask about an individual’s disability to decide if they “should really be wearing a mask or not” but there are some additional things you can consider.
The ADA only requires a reasonable accommodation. So for example, if it is an employee who cannot wear a mask, maybe you can provide them with a new position where they aren’t interacting with other employees or customers — like cleaning the bathrooms by themselves with them closed to customer use, or in rare instances a position that they can do from home — such answer phones and take reservations. If it’s a customer, you can provide reasonable accommodation such as offering a curbside pick-up of store goods. These accommodations would likely satisfy the ADA.
A business is not required to make an accommodation under the ADA if it causes an “undue burden” on the business, because then the accommodation is no longer considered “reasonable.” Campgrounds must consider many things to determine if a specific action or modification would result in an “undue burden.”
Things to consider include: The type of modification required or requested and its cost; is there another way to allow the customer to access your services that costs less? Is less harmful to your staff and other customers?
The financial resources of the campground making the modification — such as the effect it would have on the expenses or resources of a campground or in the case of employees, the impact this modification would have on the operation of the campground.
What other helpful steps can you take to prepare? Perhaps prepare ahead of time a list of possible alternatives and accommodations you can provide the individual when a person with a disability requests a modification. Such as maybe you don’t need a mask, per se, but you can have some other face covering.
The ADA also includes a “direct threat” exception to the general reasonable accommodation requirement. The ADA defines a “direct threat” as a “significant risk to the health or safety of others that cannot be eliminated by a modification of policies.” Previously, courts have decided that the “direct threat” must pose an actual risk. Businesses cannot decide something is a “direct threat” based on stereotypes and other generalizations about people with disabilities. Currently, “ADA experts” have decided that the COVID-19 pandemic does in fact constitute a direct threat.
How do the other laws and guidelines interact? Generally, state laws have similar disability accommodations and requirements — check with an attorney barred in your state regarding the interaction between state and federal disability law.
The debate regarding mask mandates is not just focused on health and safety concerns. Many employees made to enforce mask mandates have been confronted with increasing workplace violence from customers. Under the Occupation Health and Safety Act (OSHA), employees have a duty to provide a safe workplace for their employees. Campgrounds will now have to consider the possibility of violent or threatening customers who refuse to wear masks and how this would impact the safety of their employees and other customers. Perhaps the best way to prevent this is to address the possibility head-on. Make all mandates and requirements clear to your guests. Let them know when they make their reservation, again in the confirmation and have signs posted as many places as possible.
You can also make clear your alternatives, as discussed earlier, including numbers to call for curbside pick-up, delivery or any other accommodation that can be made. When possible, give away masks for free — it is much harder to object to wearing one if its readily available. Make sure your employees are all trained on your policies, consistency will protect them, your business and your other customers — treat every guest the same.
OSHA again might be implicated if you allow people to interact with your employees without wearing a mask. Employers have to determine if they are exposing their employees to hazards, which now includes COVID-19. As such, they must ensure a safe environment for their employees and be sure to have policies in place that protect them.
As there is currently no expiration date for the pandemic, its best for campgrounds to figure out a plan for how to address things moving forward. In the event these mandates persist for many months, campgrounds should know their obligations and have a plan for each possible scenario. We will likely see additional lawsuits regarding mask mandates, disabilities and the safety of employees — and it is never fun to be the test case.
Published Article: https://woodallscm.com/taylor-can-you-get-sued-for-enforcing-a-mask-mandate/