Jordan Payne Hay is an employment and labor law attorney at Skelton Taintor & Abbott. She offered to answer some questions we submitted to her in an effort for us to respond to the flurry of inquires we have received on face-coverings. This article is not legal advice but should be considered as general guidance in the area of employment and corporate law.
Can a business actually deny service to anyone not wearing a mask? Is this an ADA violation?
- Yes. The ADA generally prohibits public accommodations from establishing criteria that excludes individuals based on a disability, unless “the criteria are necessary for the business to operate safely in providing its goods and services,” based on actual risks (not be based on speculation, stereotypes, or generalizations). At this time, guidance from the CDC and the EEOC suggests that businesses concerned about the safety of their staff and customers should be justified in relying on state and local governments’ orders, to justify policies forbidding customers without face masks from entering their stores. As a best practice, and to avoid unwelcomed situations at the store, a business choosing to enforce such a policy should clearly communicate it to its customers (including in advance, e.g., via its website or a sign out front). The Executive Order also says, “Such businesses may deny entry or service to a person who is not wearing a covering and is not otherwise exempt from the requirement to do so.”