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.”
Can a business ask their customers anything in relation to why they’re not wearing a face covering?
- Yes, but proceed with caution. The Executive Order (EO) says that there are certain narrow exemptions to wearing masks: “Cloth face coverings are not required for children under age 2, a child in a child care setting, or for anyone who has trouble breathing or related medical conditions, or who is otherwise unable to remove the mask without assistance. A person who cannot wear a cloth face covering because of a medical condition is not required to produce medical documentation of the condition, provided that an employer may require such documentation from an employee in accordance with state and federal law.” This leaves things a little foggy. In terms of customers, best practice would be to ask whether they are not wearing a mask because they fall within an exception to the law.
What disciplinary action can/should employers take if they have an employee who refuses to use a mask and cannot be otherwise accommodated, such as cashier or bagger? Would this be similar to dress code enforcement?
- Employers can take action just as if the refusal is a violation of any rule or procedure in place (like dress code enforcement). Arguably, this would be even more serious.
What are the employer’s rights with enforcing the face covering as it’s an Executive Order and not a law?
- There are enforcement mechanisms (technically) under the EO. An employer is required to comply with all federal and state rules and regulations. If an employee refuses to comply, they can face discipline up to and including termination.
Can an employer ask for a medical note from their employees to verify their medical condition?
- Yes. See quote above (in red).
Does an employer need the medical note from their employee (if they claim a medical exeemption from face coverings) if they are to be investigated for non-compliance reports?
- No, but it’s probably best practice to get those notes to document all efforts to comply with the law.
Since 1853, Skelton Taintor & Abbott has provided a full range of high-quality legal services to the individuals, companies, and municipalities of Maine. The firm’s main office is located in Auburn and in January 2019, a mid-coast office was opened in Waldoboro.