Bradley Arant Boult Cummings LLP
  August 13, 2020 - United States of America

That Un-Masked Man: Can a Business Ask a Customer Who Refuses to Wear a Mask Because of a Disability to Leave?

In the COVID-19 era, many employers and businesses are wrestling with unprecedented issues. You can add one more to the list: Can you have your employees ask a customer who refuses to wear a mask because of a claimed disability to leave?

Under the Americans with Disabilities Act (ADA), a place of public accommodation – like many businesses that are open to the public – cannot discriminate against a customer or visitor on the basis of the individual’s disability in the access and enjoyment of the business. Generally, this means that you have to make sure that disabled patrons can access your business by providing physical and sometimes digital access. If the analysis ended there, this general rule would arguably prohibit businesses from denying access to a disabled individual who could not wear a mask because of that disability.

The Direct Threat Exception

However, there is an exception to this general rule. If a disabled individual poses a “direct threat to the health and safety of others,” then the ADA does not require the business (or other place of public accommodation) to allow access to that individual.

So, what constitutes a “direct threat to the health and safety of others”? As of the time of this writing, the Equal Employment Opportunity Commission (EEOC) has taken the position that COVID-19 does. If COVID-19 is a direct threat to the health and safety of others, this means that you can enforce your mandatory mask policy and could likely deny service or admission to someone who refuses to wear a mask, even if the refusal is based on a disability. However, you may want to consider ways to deliver services in a way that these unmasked patrons can still buy your goods and services.

In the employment context, the EEOC guidance states that an employer can require an employee to wear a mask, unless the employee has a disability and needs an accommodation related to wearing a mask. In that case, like with any other accommodation request, the employer and employee must enter into an interactive process to try to find a reasonable accommodation.

Given the ever-changing nature of our COVID-19 world, this guidance could change. Keep an eye on both the EEOC and the CDC guidance.

Enforcing Your Mask Requirement

Before denying service or admission to the unmasked customer, you should consider alternative ways to accommodate him or her without subjecting other guests and staff to undue risk. One potential way is for the individual to wear a face shield instead of a mask. You may want to post on your website or social media feeds a notice that customers must wear a mask, but also state that if a mask cannot be worn for health-related reasons the guest should bring a face shield. While current guidance is that face shields may not be as effective as face masks, they would likely be better than no face covering at all. A business could also provide face shields to guests, but that may be cost prohibitive.

When a customer states that he or she cannot wear a mask because of a disability, you should not ask questions about the specifics or require the customer to provide “proof” of the disability. Accept at face value the customer’s assertion that a disability prevents him or her from wearing a mask (because the customer is always right), and then enter into an interactive process to look for ways to try to accommodate it, if possible. You may or may not find a solution but you should at least try.

Requiring customers to wear masks was something no business owner was contemplating when ringing in the new year. But hey, 2020.

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