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[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
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- [Rick Braa] PPP Forgiveness
- [Rick Braa] PPP coverage periods -- how they work and what you need to know
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- [Rick Braa] Essential Strategic Decisions
- New guidance allows business events to resume
- [Rick Braa] Delivery and pickup service
- Pierce County Mobile Testing Unit
- How to find mental health services in your area
- $10 million in grant funding available to Spokane County small businesses
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- Show all articles ( 15 ) Collapse Articles
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- Shuttered Venue Operators (SVO) Grant Guidance Released
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- Check your third-party delivery invoices
- Washington state grant funding portal will be live on Dec. 2
- Pierce County approves $10,000 grants for 'Main Street' businesses
- Outdoor seating requirements for restaurants, taverns, wineries and distilleries
- [Webinar Recap] Masks and Social Distancing
- Property tax due at the end of October
- SeaTac Increases 2021 Minimum Wage to $16.57 an Hour
- WIN! Pierce County Creates $7.5 Million Program to Help Restaurants
- Unemployment Insurance tax rate increases
- New guidance allows business events to resume
- CDC Advises Against Daily Hotel Guest Room Cleaning, Unless Requested
- Tacoma Pierce County Grants for Small Business Open Sept. 9
- National Restaurant Association launches national Restaurant Revival campaign
- Employment Security Department begins processing eligible $300 payments Sept. 21
- [WIN!] 2021 per diem rates for government travel, 8.14.20
- [Updated Oct. 14] Governor extends no mask, no service statewide, rolls back Phase 3 bar seating and hits pause on phase advancement.
- How to encourage customers to mask up
- Inslee and Wiesman announce pause on county progressions to Phase 4
- Webinar: Group Purchasing Program
- King County Moves to Phase 2--Effective Immediately
- King County Applies to Enter Phase 2
- [OFFICIAL] Phase 2 restaurant & tavern reopening requirements
- Employment Security Department posts new resources
- Inslee announces Washington’s coronavirus recovery plan, 4.21.20
- Governor outlines Washington state's recovery plan
- Washington Hospitality Association - Business Insurance Webinar
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- Coronavirus updates for King County members
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- Anthony's Top 3 Daily Links - 4/13/20
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- Anthony's Top 3 Daily Links - 4/7/20
- Anthony's Top 3 Daily Links - 4/6/20
- Anthony’s Top 3 Daily Links – 4/3/20
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- Anthony's Top 3 Daily Links - 3/30/20
- Anthony's Top 3 Daily Links - 3/27/20
- Anthony's Top 3 Daily Links - 3/26/20
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- Tacoma Pierce County Health offers some extensions, refunds or waives late fees
- Thurston County Extends Food Establishment Permit Expiration Dates by Six Months
- Pierce County approves $10,000 grants for 'Main Street' businesses
- Contact tracing in King County
- Property tax due at the end of October
- SeaTac Increases 2021 Minimum Wage to $16.57 an Hour
- [WIN] Snohomish County Board of Health Rethinks Fee Increase
- WIN! Pierce County Creates $7.5 Million Program to Help Restaurants
- 2021 minimum wage rate increases
- Safe Start for Taverns and Restaurants (SSTAR) Formally Launches in King County Aug 3
- $10 million in grant funding available to Spokane County small businesses
- Free PPE for Spokane County small businesses
- King County Moves to Phase 2--Effective Immediately
- Seattle City Council Passes Hazard Pay Fees for Third-Party Delivery Drivers During Pandemic
- King County Applies to Enter Phase 2
- King County issues more guidance on adding outdoor seating and best practices.
- Spokane County property tax deadline extended to Aug. 1
- Spokane County small businesses will soon have access to free PPE
- King County to apply for Phase 1.5 to allow outdoor dining at 50% capacity
- Spokane City Council paves easier path to sidewalk cafés and streateries
- Spokane launches county-wide financial help hotline
- How You Can Help: Restaurants Supporting Medical Responders
- Seattle: Keep Workers Healthy and Safe Fund is now live
- City of Spokane announces moratorium on evictions and foreclosures
- Update: March 23, 2020
- Spokane COVID-19 Business Resources
- Greater Spokane COVID-19 Updates
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- Indoor dining, bowling and other restrictions extended until Jan. 11
- Governor announces three more weeks of restrictions
- AG Ferguson issues new guidance for third-party delivery companies
- Governor announces $135 million stimulus package
- Inslee announces cap on third-party delivery fees
- Outdoor seating requirements for restaurants, taverns, wineries and distilleries
- New restrictions on restaurants and businesses announced; relief packages in development
- Health department flow chart for coronavirus testing, quarantine
- [Breaking News] Phase 1 counties now moved to Phase 2
- Eviction moratorium extended to the end of the year
- Hotel pools can now reopen in Phase 2
- [Breaking News] Restrictions lightened on dining, alcohol sales and pools
- New guidance allows business events to resume
- Inslee updates guidance for weddings and funerals
- [Federal Guidelines] Opening Up America Again, 4.16.20
- Washington State Coronavirus Response Page
- State ordered closures
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- Governor announces $100 million plan for business support, unemployment insurance rate reduction
- [WIN!] 2021 per diem rates for government travel, 8.14.20
- [Official] Overview of statewide mask order
- COVID-19 is on a path to runaway growth in Washington state, 7.17.20
- Inslee extends eviction moratorium, 6.2.20
- Washington, Oregon and California announce Western States pact, 4.13.20
- Gov. Inslee extends WA school closure through end of school year
- Help medical professionals and first responders get personal protective equipment
- Inslee letter to Trump requests federal major disaster declaration
- Inslee statement on potential national emergency declaration, 3.13.20
- Declarations FAQ
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- Spokane County Assessor’s Office delays notices to property owners
- Spokane City Council paves easier path to sidewalk cafés and streateries
- King County Public Health Cloth Face Covering Directive
- Seattle Executive Order to Extend Moratorium on Residential, Non-Profit and Small Business Evictions
- Seattle Third Party Delivery Cap Emergency Order
- Seattle Paid Sick & Safe Time Emergency Rule
- Seattle King County Public Health Quarantine Directive and Isolation Order
- City of Spokane announces moratorium on evictions and foreclosures
- Update: March 23, 2020
- Coronavirus updates for King County members
- Seattle Mayoral Moratorium on Small Business Tenant Evictions
- Seattle King County Public Health Local Health Officer Order
- Seattle Mayoral Proclamation of Civil Emergency
- Snohomish County has issued a restriction on events with fewer than 250 attendees
- Seattle and King county have additionally prohibited gatherings of 249 persons or fewer, unless precautions are met
- Thurston County issues ban on large gatherings of 250+ people
- Spokane Regional Health District has banned all events and gatherings of more than 250 people for the next 30 days
- Seattle and King County ordered closures
- King County Local Health Officer order
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- [FAQ] Fitness centers, 8.10.20
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- Lodging members: New updates for Phase 2 & 3 fitness centers
- [Official update] Taverns, breweries, wineries and distilleries can now serve indoors
- Memo on high-risk worker proclamation, 7.29.20
- [Outdated] Starting July 30: Big changes for taverns, breweries, wineries and distilleries
- [Official memo] Safe Start Changes, 7.28.20
- Statement on statewide face covering order expansion, 7.25.20
- Inslee extends Safe Start proclamation, eviction moratorium, 7.24.20
- Phase 2 and Phase 3 restaurant, tavern, breweries, wineries and distilleries COVID-19 requirements, 7.24.20
- [In detail] Modifications for weddings and funerals, restaurants, bars, fitness and entertainment centers, 7.23.20
- Inslee announces rollbacks to some activities to slow COVID-19 exposure, 7.23.20
- [Breaking news] WA state tightens hospitality business restrictions
- Inslee extends proclamations related to COVID-19 (including SharedWork), 7.16.20
- [Governor's Blog] Inslee announces steps to address COVID-19 spread, 7.16.20
- Inslee announces steps to address COVID-19 spread, 7.16.20
- [Updated Oct. 14] Governor extends no mask, no service statewide, rolls back Phase 3 bar seating and hits pause on phase advancement.
- How to encourage customers to mask up
- Governor's Amended Proclamation To Safe Start Plan
- Secretary of Health Order on Statewide Face Coverings
- Inslee announces statewide mask mandate, 6.23.20
- Governor issues statewide mask order
- Inslee extends 23 proclamations relating to coronavirus, 6.18.20
- [Golf] State issues Phase 1 updates, Phase 2 requirements
- Inslee announces contact tracing initiative, 5.12.20
- [OFFICIAL] Phase 2 restaurant & tavern reopening requirements
- [Who is approved?] Faster reopening for smaller, coronavirus-free counties
- Five Washington counties approved for early move to next phase of reopening, 5.8.20
- Governor extends ratepayer assistance and DOR, LCB relief from payments, fees until May 31, 2020
- Governor extends 12 proclamations until May 31
- Inslee signs new COVID-19 order for phased re-opening of Washington's economy, 5.4.20
- Inslee signs new COVID-19 order for phased re-opening of Washington’s economy, 5.4.20
- [Chart] Washington's Phased Approach, 5.1.20
- We're up next: Governor lays out 4-phase plan to reopen
- Inslee announces easing of outdoor restrictions, 4.27.20
- Golf courses: Ready, set, reopen May 5 - How to prepare
- Inslee expands eviction moratorium, adds protections for residential, some commercial tenants - 4.16.20
- Governor issues order to protect high-risk employees, 4.13.20
- Protecting high-risk employees: Workers’ rights, 4.13.20
- Temporary moratorium: Garnishments and accrual of interest, 4.14.20
- Gov. Inslee extends WA school closure through end of school year
- Inslee extends Stay Home, Stay Healthy Order through May 4, 4.2.20
- Governor extends stay-home order through May 4
- Inslee on statewide shutdown of restaurants, bars, gatherings to protect against coronavirus, 3.15.20
- Inslee announces statewide school closures, expansion of limits on large gatherings, 3.13.20
- Inslee issues emergency proclamation that limits large events to minimize public health risk during coronavirus, 3.11.20
- Inslee issues coronavirus emergency proclamation, 2.29.20
- Stay at Home, Stay Healthy Order March 23, 2020
- Essential Critical Infrastructure Workers defined
- Gov. Inslee: Stay Home, Stay Healthy -- for at least two weeks
- Governor’s complete statement
- Gov. Inslee’s full press conference with King County Executive Dow Constantine
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- Washington state adopting new CDC quarantine guidelines.
- [Webinar Recap] Free testing locations
- Contact tracing in King County
- [Webinar recap] Best practices for employee coronavirus screening?
- What distinguishes flu from coronavirus?
- Health department flow chart for coronavirus testing, quarantine
- Pierce County Mobile Testing Unit
- New CDC interim guidelines for essential services workers who may have been exposed to the coronavirus
- Social distancing is critical to containing the spread
- Coronavirus Fact Sheets
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- Can the government issue a closure of restaurants?
- Will grocery store deli's still going to be allowed to serve?
- How do I ensure my employees are well and can safely work?
- Health Dept. FAQ
- Reducing food waste during temporary closures
- What do I do if my employee has coronavirus?
- What should we do if our business is impacted by coronavirus?
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- Secretary of Health Order on Statewide Face Coverings
- DOH, DOR guidelines for selling grocery and pantry items during the Stay Home, Stay Healthy Order
- Concerned about Legionnaires' disease? DOH offers guidelines for restarting water systems that have been shut down for coronavirus
- What do I do if my employee has coronavirus?
- Washington State Department of Health issues specific guidance for food workers and establishments
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- [NEW] Complete list of LCB guidelines for license holders
- LCB guidance for adding or extending outside liquor service
- Liquor and Cannabis Board says YES to cocktails
- Restaurants: What to do with your leftover beer
- What delivering spirits, beer and wine really means for your business
- LCB -- temporary expansion of curbside liquor service to accompany 'to-go' food sales
- Returns of Alcohol Product
- Beer/Wine delivery rules (LCB guidance)
- Liquor and Cannabis Board: Help for Licensees During COVID-19 Restrictions
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- Dine-Out (DO) Washington: Digital Take-Out Dining Guide
- [Webinar Recap] Masks and Social Distancing
- [Webinar recap] Best practices for employee coronavirus screening?
- [Rick Braa] PPP coverage periods -- how they work and what you need to know
- [Rick Braa] Essential Strategic Decisions
- [Rick Braa] Outsource non-operations
- [Rick Braa] Delivery and pickup service
- [Rick Braa] Fundamental Routines
- [Rick Braa]Plan and Forecast
- [Rick Braa]Engineer your business
- [Rick Braa] Negotiating Agreements
- [Rick Braa] Use all available government programs
- [Legal guidance] 5-step action plan for handling anti-mask guests
- Creating QR codes is an easy and free way to reach restaurant customers
- Best practices for hotels during coronavirus
- Concerned about Legionnaires' disease? DOH offers guidelines for restarting water systems that have been shut down for coronavirus
- Department of Labor and Industry Division of Occupational Safety and Health Letters
- Washington restaurant shutdown checklist
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- [Rick Braa] Fundamental Routines
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- [Rick Braa]Engineer your business
- Tips for cleaning POS equipment
- Safe Start for Taverns and Restaurants (SSTAR) Formally Launches in King County Aug 3
- Decision Tree For Teams Who May Have Been Exposed to Coronavirus
- [Updated Oct. 14] Governor extends no mask, no service statewide, rolls back Phase 3 bar seating and hits pause on phase advancement.
- Coronavirus basics -- sanitation, staffing and more
- FDA announces best practices for food establishments
- How to optimize your delivery and take-out operations
- Ready for delivery? Avoid driver insurance pitfalls, 4.2.20
- How restaurants can preserve cash to weather the coronavirus outbreak
- OSHA guidance on employee and workplace safety during coronavirus
- Cleaning and disinfecting guidance for hospitality
- No-contact delivery visual guide
- Hands-free hospitality: How to make no-contact delivery part of your business model
- Small Business Development Center business survival strategies
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- [Toolkit] How to set up outdoor seating (Open Air Guidance)
- Tips for cleaning POS equipment
- [Outdated] Starting July 30: Big changes for taverns, breweries, wineries and distilleries
- Sysco Coronavirus Resources
- [Updated Oct. 14] Governor extends no mask, no service statewide, rolls back Phase 3 bar seating and hits pause on phase advancement.
- Zero Cost Marketing Resources
- Restaurants: Use the crisis as a business reset
- Business insurance claims and grace periods during the coronavirus outbreak, 4.1.20
- OSHA guidance on employee and workplace safety during coronavirus
- Cleaning and disinfecting guidance for hospitality
- New guidance to auto insurers about covering delivery services
- Free ServSafe classes for safe takeout and delivery
- Does the Association have a standard letter to communicate to staff what COVID-19 is and why we might need to close?
- Staying in business: Coronavirus checklist
- [Webinar recap] Small business relief loans, survival strategies and more
- Social distancing is critical to containing the spread
- Small Business Development Center business survival strategies
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- Videos -Advisory Network Podcast: Buying or Selling Other Q&A’s
- [FAQ] Should my employees wear masks? 4.6.20
- What if anything do I need to do for my employees so that they can travel to work?
- Does the Association have a standard letter to communicate to staff what COVID-19 is and why we might need to close?
- Small Business Development Center business survival strategies
- Should hotels shut down the complimentary breakfast area?
- Can my landlord still demand rent from me if I'm forced to close?
- Operations FAQ
- Should we adjust our cancellation policies?
- How can we communicate with customers?
- What should I be doing in my business?
- What if I temporarily close?