Yes, businesses that are open to the public are responsible for complying with legitimate safety requirements. Thus, a business may enforce policies and restrictions for the safety, comfort, and peace of mind of other people. The implementation and enforcement of a face mask by a business is similar to the common “no shirt, no shoes, no service” policy we often see in retail stores and restaurants.
Is There an Exemption for Medical Reasons?
Yes, many public and private policies requiring masks include exceptions for disabilities that prevent facial covering. If no exception is in place, the Americans with Disability Act requires reasonable modifications to mask policies when necessary to provide access to goods and services for those who are not in compliance due to disability-related reasons. However, in the event that an exception to the mask policy is not practical or would pose a safety risk, the business must then provide alternative methods of providing access to goods and services. Examples of alternate methods may be home delivery or curbside pickup. It is important to note that a modification or exception to the use of mask is not required if it would result in a “direct threat.” A direct threat is “a significant risk of substantial harm that cannot be mitigated or eliminated.” Whether a direct threat exists or not is determined on a case-by-case basis through objective evidence.
Is There Potential Liability for Disability Discrimination?
Yes, a patron may claim they cannot wear a mask due to a disability and such patron cannot be discriminated against by the business. Title III of the Americans with Disability Act, ensures “full and equal enjoyment of the goods, services, facilities, privileges, advantages, or accommodations of any place of public accommodation.” Since a business is a public accommodation, it may not enforce eligibility criteria that either exclude or tend to exclude persons with disabilities, such as the enforcement that all patrons wear masks. However, a business may enforce legitimate safety requirements that are essential to safely operate. These requirements must be founded on genuine risks and not mere speculation, generalizations or stereotypes about those with disabilities.
Can a Private Business Ask a Patron to Leave for not Wearing a Mask?
It depends. A business may not outright refuse service to a patron not wearing a mask, instead it must try to provide the goods and services in an alternate way that does not impose a direct threat to the safety of others. Nevertheless, a disabled patron’s right to not wear a facial covering does not surpass a business’ right to enforce its customers to wear a mask or refuse service.