Whether it be in our personal lives orour business lives, the mask is now ubiquitous. And while its acceptance acrosssociety is an open question for the public at large, it is not an option for Pennsylvaniabusiness owners. Regardless of the political overtones, or the actual healthbenefits of masks, the business owner in the retail sector must focus on protectingtheir employees and customers. In so doing, they are also protecting themselvesfrom potential liability. In the current context of Pennsylvania mask policy,the business owner has little choice but to require a mask for both employeesand customers.
Going back to April 15, 2020, theCommonwealth of Pennsylvania, through the Secretary of the PennsylvaniaDepartment 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 Pennsylvaniabusinesses relative to their employees and their customers. The original order wasissued on April 15, 2020. This order wasrelaxed 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 Inrelevant part, the order directs employers to provide employees with masks andfurther directs that employers make it a mandatory to wear masks while on theworksite. In simple terms, wearing a mask may be seen as a condition ofemployment, and a refusal to wear a mask is grounds for termination. As anaside, the order further directs that employers provide employees with accessto handwashing facilities, hand sanitizer, and disinfectant wipes.
From a customer perspective, the orderdirects that businesses make mask-wearing mandatory for its customers and furtherdirects a business to deny entry to any customer who is not wearing a mask. TheBusiness Safety Order also references limiting the number of persons in thestore, establishing social distancing, and making physical changes to thepremises 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 medicalcondition, age, safety, or inability to communicate. Thus, before any action istaken against employees or customers, proper inquiries should be made. Notably,the order specifically indicates that “individuals are not required to showdocumentation that an exception applies.”
The updated order specifically directsthat all Pennsylvania citizens wear face coverings if they are outdoors andunable to maintain a 6-foot separation from other individuals, who are notmembers of their household. Face coverings are strictly required in any indoor locationwhere members of the public are generally permitted. Face coverings are alsorequired on public transportation and while visiting healthcare facilities.Most importantly, the order reinforces the fact that employees at the workplacemust wear a face covering when interacting in person with any member of thepublic.
Consider the following FAQ pulled directlyfrom the Pennsylvania Department of Health Website;
Do businesses need to deny entry to thosenot 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 thecustomer 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 curbsidepick-up. Other businesses besides those that provide medication, medicalsupplies, or food should consider providing services through home delivery orcontactless curbside pick-up where possible. The Order does not require acustomer to be turned away if the customer fits within an exception to theOrder. The Order states that an individual is not required to showdocumentation that an exception applies.
If the customer is refused service, and if thebusiness is not able to provide a face covering, the business should considerproviding information on mask making, distributing "how to" flyers,or sharing information about where masks can be purchased. If a customer isbelligerent 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 orput themselves in a potentially dangerous situation.
The Department wants to emphasize that it doesnot expect businesses to put employees in harm's way. Again, in deciding about whether or not tocomply with the order, an individual should consider not only his or her rightto make that decision, but his or her responsibility to family, friends, andother persons with whom they may contact, and to whom they may spread disease.
The above order, as issued by the secretarymakes clear that masks are required for all employees and all customers, absentthe existence of an exception. Failure to adhere to the order unquestionably opensa 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’scompensation claim. If a member of the public becomes infected, there is a riskthat the customer will bring legal action. Current theories of liabilityinclude simple negligence or premises liability theory. In any event, the firstround of inquiry will likely revolve around whether the retailer was adheringto local, state, and federal requirements regarding the use of face covering.
Further guidance around a mandatorymask policy may be found in the evaluation of national trends. At this point intime, most large retailers are requiring masks in their stores, regardless of whethertheir state or local governments make the policy mandatory. (34 states had amandatory face covering policy when this article was written.)
As a practical matter, the mandatorymask requirement in Pennsylvania puts retailers in a very difficult position. Byvirtue of this order, retailers and employers are required to serve as the defacto enforcers of the policy, but this is not without difficulty. Can theretailer make health inquires if an individual refuses to comply? Can they fireemployees without fear of a retaliatory claim? Must they escort customers fromthe premises for failure to comply? Will they face liability if they enforcethe order? These issues have not yet been addressed and the state policy is notentirely clear.
Despite the unanswered questionsaround the application of the state-mandated policy, it undoubtedly makes sensefor retailers to instruct their employees to wear masks and request thatcustomers wear a mask as well. More specifically, employees should deny serviceto customers who do not wear a mask. Employees must be counseled on how toapproach customers in a non-confrontational manner. Employees should directcustomers to the signage posted in the store that explains the policy as wellas the state order. If the customer fails to comply and makes repeated effortsto enter the store without a mask, the business owner has the option of callingthe non-emergency number of the local police to report the customer. This is theoption of last resort.
The COVID-19 pandemic and thegovernment reaction to the situation has left business owners with limited choices.As the government response has evolved, business owners’ obligations have becomeclearer. The existence of government guidance, and the failure to adhere to saidguidelines, will unquestionably increase the risk of legal action against thebusiness owner, from both employees and customers. For this reason, businessowners would be well served to monitor government guidelines and complyaccordingly. Further questions or specific incidents should be discussed withlegal counsel.
