by Nicole Smith
Protecting customers and employees during the COVID-19 pandemic is now, more than ever, a top concern for retail businesses. Many retailers have instituted mandatory face mask policies pursuant to federal and state guidelines. In doing so, retailers should also consider reasonable accommodations for those who cannot wear a mask due to a disability.
Balancing mandatory mask policies with Title III of the Americans with Disabilities Act (“ADA”) will safeguard retailers from potential liability while also ensuring the safety of others. The CDC recommends that all individuals wear masks in public settings, which includes retail businesses.
Additionally, many state and local government agencies are requiring individuals to wear masks in public. CDC guidance and some state mandates also provide exemptions for people who should not wear masks. Such mask-exempt individuals include, “children under the age of 2 or anyone who has trouble breathing, is unconscious, incapacitated, or otherwise unable to remove the cover without assistance.”
Business Obligations Under ADA Remain Applicable
According to the Department of Justice (“DOJ”), which is responsible for enforcing the ADA, businesses’ obligations under the ADA remain fully applicable during COVID-19. The ADA requires businesses that are open to the public to provide individuals with disabilities equal access to that business’s goods and services. Businesses open to the public must make reasonable modifications to their policies, practices, and procedures to ensure equal access for individuals with disabilities.
The ADA generally prohibits eligibility/screening criteria that tend to exclude individuals based on a disability, unless the criteria are necessary for the business to operate safely in providing its goods and services. Those requirements must be based on actual risks and may not be based on speculation, stereotypes, or generalizations about people with disabilities. In cities or states imposing mandates that people wear masks in public, there is a strong argument that a required mask policy is based on a legitimate safety requirement.
Current federal guidance also suggests that mask policies are in line with the ADA’s permissible restrictions when a direct threat exists, i.e., an un-masked individual poses a direct threat to the health or safety of others in the business. However, as the situation continues to evolve, retailers should be mindful of changing mask regulations to avoid misplaced reliance on out-of-date guidelines. Moreover, retailers should clearly communicate their mask policies to customers online and post these policies outside stores as a best practice.
No Mask, No Service Policies Fail to Recognize Requirement to Make Reasonable Accommodations
Retailers should not, however, institute a blanket “no mask, no service” policy that fails to recognize the ADA’s requirement that businesses make reasonable modifications to provide access for those with disabilities. If businesses are to determine whether an individual is unable to wear a mask due to disability — clearly, they must do so with caution.
Although there is no definitive federal guidance about whether a retailer is permitted to ask for medical documentation about a customer’s inability to wear a mask due to disability during the COVID-19 epidemic, such an approach is ill-advised. Generally, DOJ guidance has rejected the notion that businesses such as grocery stores or pharmacies should require medical documentation of disabilities. In such settings, the DOJ has concluded that requiring “persons with disabilities to obtain medical documentation and carry it with them any time they seek to engage in ordinary activities of daily life in their communities” would be “unnecessary, burdensome, and contrary to the spirit, intent, and mandates of the ADA.”
Retailers therefore must avoid asking specific questions about customers’ disabilities, as the ADA prohibits unnecessary inquiries into the existence of a disability.
As an analog, if a customer enters the establishment with a dog, the business is permitted to ask only two questions: (1) is the dog a service animal required because of a disability; and (2) what work or task has the dog been trained to perform?
Similarly, during these times, businesses should consider training employees to approach customers not wearing masks to advise them of the mask policy. If the customer responds in a way that suggests they are unable to wear a mask, the employee can ask the individual whether it is because of a disability. If a disability is at issue, the staff member should proceed to the next step of offering a reasonable accommodation.
The ADA’s reasonable modification requirement means retailers should attempt to accommodate a disabled customer in an alternative manner that would continue to protect the retailer’s employees and other customers while also providing service to the customer.
To be clear, the ADA does not give the customer the right to enter the store without a mask during the COVID-19 pandemic. Instead, for most retailers, reasonable accommodations can take the form of curb-side pick-up, allowing customers to wait in their car for an appointment to enter the building when texted/called, or assistance via online store services.
Some businesses may not have to provide a reasonable modification if the modification would change the nature of the service or pose an undue financial or administrative burden. As a best practice, businesses should train staff on how to clearly communicate both the store’s mask policy and accommodations for those unable to wear masks.
Lastly, retail businesses should know that any mask “exemption” card, even those bearing the seal of the DOJ, are fake.
These cards claim that the holder is exempt from wearing a mask due to disability. The DOJ has explicitly discredited these cards as fraudulent and does not endorse mask “exemption” cards in any manner. The bottom line is that a well-designed COVID-19 mask policy that complies with ADA requirements can keep customers and employees safe and also protect retailers from potential liability.
Nicole Smith, a partner in RumbergerKirk’s Tallahassee office, represents national and local businesses and institutions in diverse litigation matters with a focus on employment defense and commercial matters.