Safety Trumps When Dealing With Customers Who Refuse To Wear Masks

A business cannot force a customer to wear a face mask. On the flip side, a customer does not have a blanket constitutional or legal right to enter a business without a mask, even if they have a medical condition.

The law balances the rights of disabled customers with the health and safety of others, in an effort to provide the services without posing a health threat.

The Mask Police

Common now are confrontations between workers enforcing a mask policy and customers refusing to wear masks. Some jurisdictions have passed laws protecting workers, but most encourage non-confrontational resolutions.

Reports of workers being attacked, a “wild pack of Karens” melting down, and restaurants closing just to avoid altercations are an unfortunate part of the new normal. And, while some customers refuse to wear masks, others have banded together to petition retailers to enforce state mask requirements.

The Right To Go Maskless

Those that refuse to wear masks in public often cite to a “constitutional” right, but none exists. The only limited rights come from the American with Disabilities Act (the “ADA”) and equivalent state laws.

Here is what the ADA says about a customer refusing to wear a mask:

“No individual shall be discriminated against on the basis of disability in the full and equal enjoyment of the goods, services, facilities, privileges, advantages, or accommodations of any place of public accommodation by any person who…operates a place of public accommodation.”

• Translation: if a customer is unable to wear a mask for a medical reason, they may claim they have a “disability” and cannot be “discriminated against” by the business.

“Nothing…shall require an entity to permit an individual to participate in or benefit from the goods, services, facilities, privileges, advantages and accommodations of such entity where such individual poses a direct threat to the health or safety of others.”

• Translation: a disabled customer’s right to be maskless does not trump the right of a business to require a mask or refuse service. Indeed, local health departments instruct restaurants that “customers who refuse to wear a cloth face covering may be refused service and asked to leave.”

“The term ‘direct threat’ means a significant risk to the health or safety of others that cannot be eliminated by a modification of policies, practices, or procedures or by the provision of auxiliary aids or services.”

• Translation: a business cannot just refuse service; it must attempt to still provide the services in an alternative way that is safe.

Striking The Balance Between Discrimination And Safety

State laws requiring public wearing of masks have exceptions for rights under the ADA.

The California mask law requires mask wearing “inside of, or in line to enter, any indoor public space” unless an individual has a “medical condition, mental health condition, or disability that prevents wearing a face covering.”

This means that a business may not outright refuse service as the first and only option. Alteration of policies and practices to provide the service safely is the object. But, businesses need not provide the services if unsafe.

Applying this to real life isn’t easy, especially since almost no industry outside of healthcare is geared for masking wearing. For instance, restaurants are guided to:

1. Ask the reason for the refusal to wear a mask. 
2. If the customer mentions a medical reason, do not ask for the actual medical reason. Instead, respond that the restaurant can accommodate by providing a take-out option instead.
3. Send an employee outside to take the order from a safe social distance, or request that the customer order by phone from outside the restaurant and deliver curbside by leaving on table, then backing away
4. If the customer wants to eat at the restaurant, they can report to the table at the time that others take off masks, if they can wear a mask to the table. If they can’t wear a mask at all, they can take out.

Bottom line: businesses are within their legal rights to enforce customer mask-wearing policies in a way that accommodates up to the point of compromising safety.