As a result of the dangerously rising COVID-19 infections and hospitalizations, Governor Mike DeWine announced that the Ohio Department of Health will be issuing an amended statewide mask mandate. The order now contains three specific rules for businesses to follow regarding mandatory masking.
1. Each business will be required to post a Face Covering Requirement sign (version 1 / version 2) at all public entrances of the store.
2. Each business will be responsible for ensuring that customers and employees are wearing masks.
3. A new Retail Compliance Unit, comprised of agents led by the Bureau of Workers’ Compensation, will inspect to ensure compliance.
Additionally, the state will have new authority to punish violating businesses. A first offense will result in a written warning, while a second offense will result in a 24-hour closure of the business.
These new rules, however, do not come without risk. First, customers and other non-employee visitors with an underlying medical or mental health condition could attempt to claim an exception under Title III of the Americans with Disabilities Act. That accommodation, however, need not result in allowing them inside the business unmasked. A business can offer online ordering and curbside pickup. It can have shoppers at the ready to make purchases on-call and bring them outside to the customer, or otherwise meet the customer outside to transact business. As long as a service is made “readily accessible” for someone with a disability, a business has met its obligation under the ADA, and there are many ways to accomplish this without letting someone inside maskless.
The same applies to employees. Title I of the ADA allows employers to modify work rules as a reasonable accommodation for an employee’s disability. If a mask causes an issue for someone with a disability, the solution is to offer that individual an accommodation. Perhaps the employer segregates the employee so that he or she does not come into contact with anyone else. Perhaps it permits that employee to work from home. The employer also could grant a leave of absence until the risk abates. The point is that the employer and the employee have options other than allowing them to work freely without a mask inside the business.
Finally, there are concerns related to workplace violence. The fact remains that some people become hostile when told to wear a mask, but your employees may not be professionally trained to diffuse these hostile situations. Do not leave it up to your untrained employees to try to enforce these rules and potentially deal with escalating hostilities and violence. You wouldn’t send an amateur to defuse a bomb, lest you risk an explosion. This situation is no different (it also might violate OSHA’s General Duty Clause). Instead consider (i) deploying trained personnel (ideally security, but at least someone at a management level) to enforce this mandatory mask rule and ensure 100 percent compliance within your business; and (ii) training all other employees not to engage and instead to summon a designated responder.
If you have questions about your business’s new obligations, or other questions related to the ongoing COVID-19 pandemic, contact partner Jon Hyman, firstname.lastname@example.org, the Lead of our Coronavirus Task Force, or any of our other Labor & Employment attorneys.
This Client Alert is a summary prepared for general informational purposes and is not intended or meant to constitute a legal opinion or legal advice from Meyers, Roman, Friedberg & Lewis or any of its attorneys.