“Behind the Mask” is more than just a Fleetwood Mac album. It’s a science-based recommendation by the U.S. Centers for Disease Control and Prevention (CDC), and even a requirement under a patchwork of state and local laws designed to stem the spread of the coronavirus. But what is an employer to do when an employee refuses to wear a face covering? What can an operator of a place of public accommodation do when a guest ignores the sign mandating face coverings? In some instances, the cultural clash leads to visceral exchanges.

Individuals claiming to have a constitutional right to free expression (or to endanger others) have no such rights against a private business or workplace. Many individuals asserting that they cannot or will not wear a face covering, however, cite to health restrictions as their justification (or religious objections). As addressed below, some even print “cards” from the internet purporting to grant them a right to bare their faces—cards reminiscent of the bogus “service animal” identifications available to anyone on the internet for a modest fee.

Yet, employers are required to provide accommodations to individuals with disabilities under the Americans With Disabilities Act (ADA) (and religious accommodations to a lesser extent under Title VII). These obligations complicate the analysis of strict face covering rules in the workplace. Meanwhile, different accommodation requirements under Title III of the ADA create similar concerns for places of public accommodation.

Face Covering Requirements in the Workplace

Following the Interactive Process

If any employee claims to have a medical impairment that restricts them from wearing a facemask, that triggers the interactive accommodation process under Title I of the ADA. The employee may have a respiratory impairment, anxiety disorder, skin condition, or a host of other impairments. The employee may have a disability that simply requires assistance in putting on or removing the face covering. In addressing the situation under the ADA, the employer needs to ask:

• Does the individual actually have a condition (a disability) that may need to be accommodated under the ADA, and can the individual furnish reliable medical documentation to confirm their inability to wear a mask or other face covering?
• What are the essential functions of the employee’s job, and is face-covering a new, albeit transient, essential job function?
• Are there viable alternatives to the mask or face covering requirement, such as use of a shield or methods for isolating the employee from others?
• Would eliminating the face covering pose an undue risk to the safety and health of the employee or others?

Complying with the ADA starts with engaging in an interactive accommodation process. During that stage, the employer is not necessarily required to release the employee into the workplace without a face covering. As a stop-gap measure, the employer may want to consider paid leave, telework, or some alternative to keep others safe while the accommodation request is properly evaluated. Part of this vetting includes obtaining reliable documentation from the employee on the existence of a disability and the employee’s work-related restrictions. An internet-based card or a generic note from a health care provider who has never treated the employee does not suffice. The employer should focus instead on requesting documentation from the employee’s health care provider, or perhaps a health care provider chosen by the employer (at the employer’s expense).

Vet Alternatives But Don’t Abandon the Safety Justification for Face Coverings

The process does not end if the employee can produce sufficient evidence of the need to eschew the facemask. Reasonable accommodations do not include abandoning essential job functions—and using a face covering in many work environments may, at least for now, be considered an essential job function. Case law has long supported the conclusion that the ability to adhere to safety standards can be an essential job function. The patchwork of state and local laws mandating face coverings—along with CDC guidance—lends support to adding face covering to the existing list of essential job functions. Some of the state and local orders and laws create exceptions to face covering requirements for employees unable to wear them due to medical restrictions. Those laws do not necessarily override the ADA considerations, nor do they necessarily arm the employee with an individual right of action.

Even if face covering may now be an essential job function, the interactive process warrants consideration of alternatives that satisfy the same safety goals. Job duties, the degree of the individual’s exposure to others, and the work environment itself (closed and indoors, or outdoors?) affect this analysis. An open office environment is different from a construction site. Would the employee need to keep their face uncovered all of the time? Could the employee work in an isolated area (behind closed doors or shielded by Plexiglas) and still perform the job? Is telework viable? Would a skirted face shield, as opposed to a mask, be feasible? All of these possibilities, and others (including a leave of absence or reassignment until such time that face coverings are no longer necessary), should be evaluated before coming to a decision. In the end, the employer may select any reasonable accommodation, and is not required to adopt the employee’s preferred accommodation.

Risks to Safety and Health

In some instances, the employer may conclude that surrendering to an employee’s request to shun face coverings would expose the employee and/or others to an undue safety or health risk. The employer bears the burden of supporting the “direct threat” defense in a refusal to accommodate case, but, given the risks associated with COVID-19 and the rapid spread of infections by asymptomatic persons, standing by this science-based precaution may well be a viable defense. EEOC guidance on the reasonableness of requiring the use of personal protective gear lends support to this argument. Moreover, the employer should weigh the risks of defending against an ADA claim by a single individual unwilling to wear a face covering against the competing legal obligation to provide a safe workplace for others (as well as any third parties with whom the mask-less employee interacts). There will inevitably be claims, and in this instance, employers may be faced with a Hobson’s Choice of deciding which claim they would rather defend.

Finally, the accommodation request may instead stem from religious beliefs rather than medical restrictions. The same general process is applicable (albeit without seeking medical documentation), though the hardship test in religious accommodation cases only requires the employer to establish more than a de minimis hardship. As such, enforcing a face-covering rule may be easier to defend in this context.

Face Covering Rules in Places of Public Accommodation

What right does a place of public accommodation (a store, a restaurant, a hotel, a hospital, etc.) have to post and uniformly enforce a “NO MASK, NO SERVICE” rule?

While there is no overriding federal mandate with regard to mask wearing, states and local governments have implemented ordinances that require people to wear masks or face coverings while out in public spaces. Moreover, places of public accommodation, such as stores and restaurants, may on their own volition require people to wear masks while on the premises. These governmental directives and private policies, however, are not receiving universal acceptance by the public. Rather, they are being challenged by some on multiple grounds, with claims, among others, that the requirement is “unconstitutional,”¹ the masks are unnecessary, the mask requirement violates religious beliefs² or, as discussed below, that individuals have a disability that prevents them from wearing a mask or face covering.

YouTube, Twitter and other social media sites are replete with videos showing people vociferously refusing to wear masks while, for example, shopping at grocery and department stores. Some of these encounters include shouting, pushing and other acts of physical violence. At least one incident involved a shooting.

So, what is a place of public accommodation to do? Or put another way, Rock, meet Hard Place.        

Does a Particular Enterprise Even Need to Worry About Title III?

Title III of the ADA, governing places of public accommodation, also requires accommodations for guests with disabilities, but with a separate set of ground rules governed by regulations from the Justice Department. A business facing a Title III challenge should first determine whether it is even subject to the law. Title III specifies the entities that the Act covers.³ Without going into each of the 12 enumerated categories, a broad brush definition is that a place of public accommodation is an entity that provides services to the public, such as lodging, dining, shopping, and medical services.⁴

Can a Place of Public Accommodation Turn Away Somebody Who Refuses to Wear a Face Mask?          

Most likely “yes”—at least for now, while there is guidance from the CDC and requirements or recommendations from state and local governments supporting face mask rules.

Objections based on, for example, unconstitutionality, are irrelevant to a Title III analysis, or really any other analysis as it relates to private businesses. But what are stores or other covered entities to do when somebody wants to shop but refuses to wear a mask? Let’s use a real life example.⁵ A woman approaches a supermarket in Dana Point, California, shortly after Gavin Newsom, California’s governor, issued an order requiring that people wear masks in public places. Please note: The story you are about to see is true. The names have been changed to protect the innocent.

Ricky, a supermarket employee, tells Ethel, the shopper, that she cannot come into the store without a mask. Ethel asks for a supervisor. Fred, the store manager arrives.

Ethel: “Hi. I have a medical condition that I’m not allowed to wear a mask and I’m not required by HIPAA rules and regulations to disclose that (presumably the medical condition).”

Fred: “Can we shop for you?”

Ethel: “I have private things I want to get that maybe I don’t want you to see.”

(Fred reaffirms the store’s mask rule, but…)

Ethel: “…where’s the regulations that state that? … Cause you’re discriminating against me now, do you know that?”

Fred: “I’m offering that we can help you.”

Ethel: “No. I have private stuff that I don’t want you to see … How is it going to help me when you’re gonna do shopping for me?”

And then Ethel further objects because she’s concerned about Fred using her credit card out of her sight:

Ethel: “…I’m gonna give you my credit card … for you to go and take and pay with my (conversation ends).”⁶

Can Fred refuse to let her into the store? As stated above, most likely, “Yes.”

Title III mandates that places of public accommodation 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 what it can reasonably do to accommodate the customer. Further, the customer must advise the business that they need an accommodation if it is not obvious. The law does not require a business owner or its employees to be clairvoyant. (At least, not yet…). While an employer can and should request appropriate medical documentation when an employee requests a workplace accommodation, that same right may be more restricted with respect to customer accommodation requests under Title III. Thus, the rock and the hard place become harder.

Accommodations can take many forms. For example, a covered business must allow entrance for bona fide service animals. Notably, Titles II and III specify that only dogs or miniature horses (yes, that’s right, we haven’t just made something up) can be services animals and they must (1) be required to assist a person with a disability, and (2) receive special training to do so. Lodging facilities must provide TTD devices for persons with hearing impairments. Parking lots for covered entities must provide specially designated and measured stalls for people with mobility difficulties.

But, public accommodations do not need to accommodate individuals if doing so would impede the ability to safely provide their goods and services. Any concern about safety, however, must be based on actual risks; the business cannot simply assume that risk exists—such as a concern that it would be unsanitary to allow a service animal into the facility.⁷

Currently, there is a reasonable belief that allowing unmasked members of the public into covered business establishments creates a health and safety risk, based, at the very least, on guidance from the CDC. Moreover, the virus is spread by persons who may be asymptomatic, and who perhaps have no idea whether they carry the virus. Furthermore, state and local ordinances that mandate mask wearing provide a legitimate basis for requiring that customers wear masks or other suitable face coverings.

The easiest and most effective way to enforce a mask rule is to apply it to all customers and staff. That avoids having to make individual determinations as to whether a specific individual creates a direct threat to the health and safety of others. Getting it wrong can lead to potential liability under Title III, as well as sparking customer and employee discontent. Signs establishing the mask requirement should be prominently placed at the business’ entrances, as well as on its website’s home page.

There will, on occasion, be individuals who—for valid medical reasons—truly cannot wear a mask. For example, people with asthma and other chronic respiratory conditions, or those who with post-traumatic stress disorder, anxiety or claustrophobia may not medically be able to wear a mask. Title III requires that these people, if possible, be accommodated. This can include offering, like Fred did, to do the shopping for the individual. Other accommodations can include:

• Allowing the person to wear a face shield instead of a mask;
• Allow customers to order online or by telephone with curbside pick-up or no-contact delivery in a timely manner;
• Allow a person to wait in their car for an appointment and enter the building when called or texted;⁸
• Offer appointments by telephone or video calls.

Not all of these alternatives, however, would necessarily amount to “equivalent facilitation”—particularly those that deny access to the “in-store” shopping experience. The proverbial “Ethel” may want to squeeze the different bathroom tissues (or melons) before deciding on her purchase. Yet, providing the best and safest access for everyone concerned may be the best solution.

Beware of the Latest ADA-Related Scam

As mentioned above, we are all well-familiar with the bogus service animal certification cards that can be purchased off the internet. Now, circulating on the web is a “Get out of wearing a facemask free” card that looks like this: