[Legal] Mask wearing questions and answers

By Catharine Morisset, Attorney at Law — Fisher & Phillips LLC

Governor Inslee’s phased industry reopening guidelines and the Washington State Health Department’s June 23, 2020 mask mandate have presented some guest service challenges for owners and operators, along with questions regarding best practices and potential legal consequences. We reached out to Washington employment law attorney Catharine Morisset of Fisher Phillips to help us answer some common questions.   Please note that the below are general guidelines only and not intended to provide legal advice. If you are in need of legal advice, please consult with your counsel.

What is the current law regarding masks?  Is it different for employees or guests?

Beginning April 3, 2020, the White House Coronavirus Task Force and the CDC recommended the use of face masks (or cloth face coverings) as part of a comprehensive plan to help slow the spread of COVID-19.  As of June 26, 2020, cloth face coverings became mandatory statewide.  The current mask order requires that every Washingtonian (except children under five) must wear a facial covering when in an indoor or outdoor public space.  This includes common spaces in the hospitality industry, like reception, waiting areas, or hotel lobbies.  The order also specifies that businesses cannot allow customers to enter without a mask.  Individuals may remove face coverings while eating or drinking at a restaurant or in an outdoor space provided that six feet of social distancing can be maintained.

This Mandate compliments, but does not replace the more industry, phase specific reopening guidelines.  Those require employers to ensure workers are wearing cloth face coverings in almost all situations.  For more information on the employee-specific guidelines depending on your county’s reopening phase, visit the Coronavirus Resource Guide and the Governor’s landing page landing page for the specific reopening guidance by industry and phase.

What are the penalties for not complying with mask requirements? Are the penalties for not complying with wearing masks the same for guests and employees alike?

There are steep potential consequences for failing to enforce mask requirements.

An individual who refuses to wear a mask may be found guilty of a criminal misdemeanor, which subjects the individual to fines of $25-$100 per violation and jail time not to exceed ninety days.  A business owner is subject to the same potential penalties for violating the current Health Department order if they fail to follow current mask requirements, in addition to enforcement remedies available from the Department of Labor & Industries (L&I).

L & I ensures compliance with worker safety rules, including the workplace mask requirements.  It has the right to inspect at any time, and it may issue citations that must be published, along with monetary penalties.  It can also order the closure of your business.  Civil penalties range up to $7,000 per violation.  L&I typically finds multiple worksite violations. Employees also have a right to file a complaint with L&I if they feel their employer is failing to provide a safe workplace.  L&I then opens and investigation, costing time and money to respond, with the potential again for citations, closure, and civil penalties.  Also keep in mind that it is unlawful for any employer to take any adverse action such as firing or threats against a worker who raises legitimate safety and health concerns about the workplace, which can lead to a private lawsuit against you.

A guest claims they won’t wear a mask because they don’t think it is helpful, or because of a political belief. What can I do?

You have the right to refuse guest service in such a situation. Also be ready for false or misleading “cards” that purport to be from the Department of Justice or other authorities stating the bearer has the “right to breathe” and not wear a mask.  L&I has specifically stated that claims that wearing masks build up carbon dioxide to dangerous levels is a myth. While not required in this a situation, consider offering alternatives, such as take out, rescheduling an appointment, or curb-side service.  Offering alternatives, rather than engaging in a confrontation or debate, is a better practice.  In the unfortunate situation where the guest may become belligerent, coach your staff through what to say and when to contact a manager.  The manager should be ready with what the procedure is for removing an individual trespasser, if the guest refuses to leave.

A guest claims they can’t wear a mask because of a medical condition.  What must I do? What can I do?

An individual who truly has a medical condition or disability that prevents them from wearing a mask triggers the businesses’ duty to provide the guest with a reasonable accommodation. Consider starting out this discussion to a guest claiming to have a medical condition with a discussion that the Mask Mandate is the law and the business faces consequences for not following it. It is not reasonable to expect the guest to have a doctor’s note on their person, but it reasonable to ask the guest if their health care provider has provided any recommended alternatives. It is best not to require documentation from a visitor to support their request. If the guest does not share any useful alternatives, instead of engaging in a discussion about whether they are exempt from the mask rule, be ready with alternatives that would allow them to use your products or services, such as through curbside service or rescheduling reservations for a later date.

What are the risks if I refuse the guest service?  Can a guest sue me?

Your plan should be to offer alternatives that would still provide the guest with your service or products.  However, there is no one-size-fits-all.  Reasonable accommodation options for each situation are based on highly fact-specific analyses that must examine the guest’s medical condition and the specific business, service, or product at issue.  With a ready plan, the hope is to mitigate against the risk of a claim and keep your guests and customers satisfied.  Unfortunately, in these times particularly, it is impossible to mitigate against all risk of a legal claim by your guests (or employees).

An employee refused to wear a mask.  What must I do?

You should start with asking your employee why they are refusing to wear a mask. Is it a political statement, a general fear about safety, or a medical condition?  Employees with a medical or disability issue, who are requesting accommodation, must provide their employer with an accommodation statement from their medical professional specifying that a face covering or mask should not be worn due to a current health condition. As the state Department of Health explains, however, employers cannot just then allow the employee to work without a mask.  There must be a dialogue about what are medically and practically acceptable options that still meet the mask requirements.  Unfortunately, some practical solutions may not meet the mask requirement. For example, a cook wearing a face shield or a plexiglass barrier in lieu of a mask may not be an acceptable alternative.  Some examples are included on Labor & Industries’ mask requirement page.

Employers also need to comply with the Governor’s high-risk employee mandate, which provides that workers falling in a defined “high risk” category must be allowed alternative work arrangements or remain on unemployment where that is not possible.

Other than a genuine disability or health condition, most reasons for employees to refuse to wear a mask will be outweighed by the legal requirements and the potential risk to their own health and that of others.  However, consult with your legal counsel before deciding to end anyone’s employment for refusing to wear a mask or concluding that an employee is unable to work without one.

Can an employee sue me if a guest or another employee refuses to wear a mask?

Concerning your employees, the risk of not enforcing the mask mandate are the risks associated with an employee unfortunately contracting COVID-19.  Employers have a duty to provide a safe and healthy workplace free from recognized hazards.  While most workplace injuries generally fall within workers compensation coverage, there is an exception for “injuries inflicted with deliberate intention.”  The risk of ignoring a mask mandate is similar to the risk of failing to comply with another workplace safety requirement – loss of workers’ compensation coverage.  Such claims are not releasable in advance. There are also non-monetary costs such as low employee morale and losing your workforce if employees perceive that their employer is not following all guidelines to keep the workplace safe.

Any ideas for best practices?

Providing notice to customers, visitors, guests of your mask requirement prior to their arrival at your business can help reduce confusion and prevent an uncomfortable situation.  Personal service providers, such as hotels, restaurants, or salons, should provide notice of your policy when confirming their reservations.  A simple message to visitors and guests is best – confirming the reservation and highlighting your efforts to keep them and your staff safe by sharing your social distancing and masks requirements.  Posting notices on the company’s public facing website, apps, and social media platforms using email to notify visitors of your policy is also a useful communication tool.  These steps can be useful in addition to required signage at your property.

You also need a plan and procedure for how to handle guests who refuse to wear masks, including best tips for communicating with guests, designating a member of management responsible for any difficult situations, and a plan on how to handle belligerent guests if the situation unfortunately escalates.

For these and more ideas, you may want to check out our recent articles, including a Five-Step Action Plan on how to handle anti-mask guests