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UPDATE: The Mask Question is No Longer a Question for Retailers

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UPDATED 09/10/20

Whether it be in our personal lives or our business lives, the mask is now ubiquitous. And while its acceptance across society is an open question for the public at large, it is not an option for Pennsylvania business owners. Regardless of the political overtones, or the actual health benefits of masks, the business owner in the retail sector must focus on protecting their employees and customers. In so doing, they are also protecting themselves from potential liability. In the current context of Pennsylvania mask policy, the business owner has little choice but to require a mask for both employees and customers.

Going back to April 15, 2020, the Commonwealth of Pennsylvania, through the Secretary of the Pennsylvania Department of Health, issued a Business Safety Order (Link https://www.governor.pa.gov/wp-content/uploads/2020/04/20200415-SOH-worker-safety-order.pdf)  that outlined the obligations of Pennsylvania businesses relative to their employees and their customers. The original order was issued on April 15, 2020.  This order was relaxed to some extent in June and July but the secretary issued an updated order (link https://www.governor.pa.gov/wp-content/uploads/2020/07/20200701-SOH-Universal-Face-Coverings-Order.pdf ) on July 1, 2020  In relevant part, the order directs employers to provide employees with masks and further directs that employers make it a mandatory to wear masks while on the worksite. In simple terms, wearing a mask may be seen as a condition of employment, and a refusal to wear a mask is grounds for termination. As an aside, the order further directs that employers provide employees with access to handwashing facilities, hand sanitizer, and disinfectant wipes.

From a customer perspective, the order directs that businesses make mask-wearing mandatory for its customers and further directs a business to deny entry to any customer who is not wearing a mask. The Business Safety Order also references limiting the number of persons in the store, establishing social distancing, and making physical changes to the premises to facilitate the separation of employees from customers.

There are exceptions to the masking rule. Individuals may be excused from wearing a face covering based upon a medical condition, age, safety, or inability to communicate. Thus, before any action is taken against employees or customers, proper inquiries should be made. Notably, the order specifically indicates that “individuals are not required to show documentation that an exception applies.”

The updated order specifically directs that all Pennsylvania citizens wear face coverings if they are outdoors and unable to maintain a 6-foot separation from other individuals, who are not members of their household. Face coverings are strictly required in any indoor location where members of the public are generally permitted. Face coverings are also required on public transportation and while visiting healthcare facilities. Most importantly, the order reinforces the fact that employees at the workplace must wear a face covering when interacting in person with any member of the public.

Consider the following FAQ pulled directly from the Pennsylvania Department of Health Website;

Do businesses need to deny entry to those not wearing a face covering such as a mask?

Yes, however, if a business provides medication, medical supplies, or food, that business must offer another means for the customer to purchase goods if the customer is unable to wear a face covering, such as a mask. Those means could include home delivery or contactless curbside pick-up. Other businesses besides those that provide medication, medical supplies, or food should consider providing services through home delivery or contactless curbside pick-up where possible.  The Order does not require a customer to be turned away if the customer fits within an exception to the Order.  The Order states that an individual is not required to show documentation that an exception applies.  

If the customer is refused service, and if the business is not able to provide a face covering, the business should consider providing information on mask making, distributing "how to" flyers, or sharing information about where masks can be purchased. If a customer is belligerent or aggressive in refusing to wear a mask or other face covering, there is no expectation that an employee should force a customer to comply or put themselves in a potentially dangerous situation.

The Department wants to emphasize that it does not expect businesses to put employees in harm's way.  Again, in deciding about whether or not to comply with the order, an individual should consider not only his or her right to make that decision, but his or her responsibility to family, friends, and other persons with whom they may contact, and to whom they may spread disease.

The above order, as issued by the secretary makes clear that masks are required for all employees and all customers, absent the existence of an exception. Failure to adhere to the order unquestionably opens a business owner to liability should an employee or a customer become infected. If a worker acquires the COVID-19 virus, the employer may face exposure for a worker’s compensation claim. If a member of the public becomes infected, there is a risk that the customer will bring legal action. Current theories of liability include simple negligence or premises liability theory. In any event, the first round of inquiry will likely revolve around whether the retailer was adhering to local, state, and federal requirements regarding the use of face covering.

Further guidance around a mandatory mask policy may be found in the evaluation of national trends. At this point in time, most large retailers are requiring masks in their stores, regardless of whether their state or local governments make the policy mandatory. (34 states had a mandatory face covering policy when this article was written.)

As a practical matter, the mandatory mask requirement in Pennsylvania puts retailers in a very difficult position. By virtue of this order, retailers and employers are required to serve as the de facto enforcers of the policy, but this is not without difficulty. Can the retailer make health inquires if an individual refuses to comply? Can they fire employees without fear of a retaliatory claim? Must they escort customers from the premises for failure to comply? Will they face liability if they enforce the order? These issues have not yet been addressed and the state policy is not entirely clear.

Despite the unanswered questions around the application of the state-mandated policy, it undoubtedly makes sense for retailers to instruct their employees to wear masks and request that customers wear a mask as well. More specifically, employees should deny service to customers who do not wear a mask. Employees must be counseled on how to approach customers in a non-confrontational manner. Employees should direct customers to the signage posted in the store that explains the policy as well as the state order. If the customer fails to comply and makes repeated efforts to enter the store without a mask, the business owner has the option of calling the non-emergency number of the local police to report the customer. This is the option of last resort.

The COVID-19 pandemic and the government reaction to the situation has left business owners with limited choices. As the government response has evolved, business owners’ obligations have become clearer. The existence of government guidance, and the failure to adhere to said guidelines, will unquestionably increase the risk of legal action against the business owner, from both employees and customers. For this reason, business owners would be well served to monitor government guidelines and comply accordingly. Further questions or specific incidents should be discussed with legal counsel.

Whether it be in our personal lives or our business lives, the mask is now ubiquitous. And while its acceptance across society is an open question for the public at large, it is not an option for Pennsylvania business owners. Regardless of the political overtones, or the actual health benefits of masks, the business owner in the retail sector must focus on protecting their employees and customers. In so doing, they are also protecting themselves from potential liability. In the current context of Pennsylvania mask policy,the business owner has little choice but to require a mask for both employees and customers.

Going back to April 15, 2020, the Commonwealth of Pennsylvania, through the Secretary of the Pennsylvania Department of Health, issued a Business Safety Order (Link https://www.governor.pa.gov/wp-content/uploads/2020/04/20200415-SOH-worker-safety-order.pdf)  that outlined the obligations of Pennsylvania businesses relative to their employees and their customers. The original order was issued on April 15, 2020.  This order was relaxed to some extent in June and July but the secretary issued an updated order (link https://www.governor.pa.gov/wp-content/uploads/2020/07/20200701-SOH-Universal-Face-Coverings-Order.pdf ) on July 1, 2020  In relevant part, the order directs employers to provide employees with masks and further directs that employers make it a mandatory to wear masks while on the worksite. In simple terms, wearing a mask may be seen as a condition of employment, and a refusal to wear a mask is grounds for termination. As an aside, the order further directs that employers provide employees with access to hand washing facilities, hand sanitizer, and disinfectant wipes. 

From a customer perspective, the order directs that businesses make mask-wearing mandatory for its customers and further directs a business to deny entry to any customer who is not wearing a mask. The Business Safety Order also references limiting the number of persons in the store, establishing social distancing, and making physical changes to the premises to facilitate the separation of employees from customers.

There are exceptions to the masking rule.Individuals may be excused from wearing a face covering based upon a medical condition, age, safety, or inability to communicate. Thus, before any action is taken against employees or customers, proper inquiries should be made. Notably,the order specifically indicates that “individuals are not required to show documentation that an exception applies.”

The updated order specifically directs that all Pennsylvania citizens wear face coverings if they are outdoors and unable to maintain a 6-foot separation from other individuals, who are not members of their household. Face coverings are strictly required in any indoor location where members of the public are generally permitted. Face coverings are also required on public transportation and while visiting healthcare facilities.Most importantly, the order reinforces the fact that employees at the workplace must wear a face covering when interacting in person with any member of the public.

Consider the following FAQ pulled directly from the Pennsylvania Department of Health Website;

Do businesses need to deny entry to those not wearing a face covering such as a mask?

Yes, however, if a business provides medication,medical supplies, or food, that business must offer another means for the customer to purchase goods if the customer is unable to wear a face covering,such as a mask. Those means could include home delivery or contactless curbside pick-up. Other businesses besides those that provide medication, medical supplies, or food should consider providing services through home delivery or contactless curbside pick-up where possible.  The Order does not require a customer to be turned away if the customer fits within an exception to the Order.  The Order states that an individual is not required to show documentation that an exception applies.  

If the customer is refused service, and if the business is not able to provide a face covering, the business should consider providing information on mask making, distributing "how to" flyers,or sharing information about where masks can be purchased. If a customer is belligerent or aggressive in refusing to wear a mask or other face covering,there is no expectation that an employee should force a customer to comply or put themselves in a potentially dangerous situation.

The Department wants to emphasize that it does not expect businesses to put employees in harm's way.  Again, in deciding about whether or not to comply with the order, an individual should consider not only his or her right to make that decision, but his or her responsibility to family, friends, and other persons with whom they may contact, and to whom they may spread disease.

The above order, as issued by the secretary makes clear that masks are required for all employees and all customers, absent the existence of an exception. Failure to adhere to the order unquestionably opens a business owner to liability should an employee or a customer become infected.If a worker acquires the COVID-19 virus, the employer may face exposure for a worker’s compensation claim. If a member of the public becomes infected, there is a risk that the customer will bring legal action. Current theories of liability include simple negligence or premises liability theory. In any event, the first round of inquiry will likely revolve around whether the retailer was adhering to local, state, and federal requirements regarding the use of face covering.

Further guidance around a mandatory mask policy may be found in the evaluation of national trends. At this point in time, most large retailers are requiring masks in their stores, regardless of whether their state or local governments make the policy mandatory. (34 states had a mandatory face covering policy when this article was written.)

As a practical matter, the mandatory mask requirement in Pennsylvania puts retailers in a very difficult position. By virtue of this order, retailers and employers are required to serve as the defacto enforcers of the policy, but this is not without difficulty. Can the retailer make health inquires if an individual refuses to comply? Can they fire employees without fear of a retaliatory claim? Must they escort customers from the premises for failure to comply? Will they face liability if they enforce the order? These issues have not yet been addressed and the state policy is not entirely clear.

Despite the unanswered questions around the application of the state-mandated policy, it undoubtedly makes sense for retailers to instruct their employees to wear masks and request that customers wear a mask as well. More specifically, employees should deny service to customers who do not wear a mask. Employees must be counseled on how to approach customers in a non-confrontational manner. Employees should direct customers to the signage posted in the store that explains the policy as well as the state order. If the customer fails to comply and makes repeated efforts to enter the store without a mask, the business owner has the option of calling the non-emergency number of the local police to report the customer. This is the option of last resort.

The COVID-19 pandemic and the government reaction to the situation has left business owners with limited choices.As the government response has evolved, business owners’ obligations have become clearer. The existence of government guidance, and the failure to adhere to said guidelines, will unquestionably increase the risk of legal action against the business owner, from both employees and customers. For this reason, business owners would be well served to monitor government guidelines and comply accordingly. Further questions or specific incidents should be discussed with legal counsel.