• September 9, 2020

A Business Guide to Face Masks During COVID-19

A Business Guide to Face Masks During COVID-19

A Business Guide to Face Masks During COVID-19 150 150 Business & Worker Disaster Help Center

From the L.A. County Department of Consumer and Business Affairs in partnership with Bet Tzedek Legal Services

Across the country, COVID-19 regulations have created much uncertainty for business owners and customers alike, and it is often difficult for businesses to stay informed on how to comply with the patchwork of local, state, and federal laws.  A major question that regularly comes up is whether businesses can require their customers to wear a face covering.  In short, the answer is usually yes.  This article aims to provide general guidance on how small businesses in Los Angeles County can comply with face covering regulations.  This article does not constitute legal advice.

  1. The Governor has broad powers to regulate while California is in a “state of emergency.”
  2. Customers opposed to face covering policies commonly state that the Governor does not have the authority to force people to wear face coverings.  This, however, is not true — through the combination of various state laws, the Governor indeed has the legal authority to do so during a state of emergency.

    On March 4, 2020, Governor Newsom declared a state of emergency in California due to the rapid spread of COVID-19.[1]  During a state of emergency, the Governor has complete authority over state agencies — one example being the CA Department of Public Health — in order to combat the emergency.  Under another state law, the Department of Public Health “may take measures as are necessary” to prevent the spread of disease.[2]  Taken together, these laws give the Governor broad legal authority to create and enforce regulations, such as the face covering mandate, to curb the health risks associated with COVID-19.[3]

  3. “No Shirt, No Shoes, No Service.”
  4. Apart from the Governor’s ability to mandate face coverings, business owners themselves have the authority to prohibit customers for refusing to wear a face covering.  In fact, business owners may refuse customers for almost any non-discriminatory reason.  It is a business owner’s right as a private property owner to refuse service to a customer who is not wearing a face covering, in the same way that business owners have always been able to refuse service to customers not wearing a shirt or shoes.  However, the refusal must not violate any other law.

  5. Customers with a disability may be exempt from wearing a face mask.

Usually, customers will cite the Americans with Disabilities Act (“ADA”) as a reason why they do not have to wear a face covering.  The ADA, however, does not provide a blanket prohibition on face mask policies.  Under the ADA, if a customer with a disability cannot wear a face mask, businesses must provide reasonable modifications to their face covering policy so that the customer is able participate in the goods or services that the business provides.[4]  For example, if the business is a grocery store, it can offer curbside pickup for someone who cannot wear a mask.  Or, the business may allow that customer to wear a loose scarf or face shield instead of a mask.

In addition, businesses are not required to serve any individual if doing so presents a direct threat to the health or safety of others, based on an individualized, reasonable assessment.[5]  In making that assessment, businesses must consider whether reasonable modifications to their face covering policy for that particular individual will mitigate the risk.

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In conclusion, businesses are generally allowed to require customers to wear face coverings.  In light of the ever-changing state of COVID-19 regulations, however, business owners are encouraged to monitor the California and Los Angeles County websites for the latest guidance.[6]  Each business owner must carefully evaluate the applicable orders to determine the compliance steps required for their individual business.
Here are some resources to help you:

If you are uncertain about a specific issue, you can call the County’s Disaster Help Center for more information: (833) 238-4450| Monday – Friday 8:30 a.m. to 5:30 p.m. PDT |  disasterhelpcenter@LACounty.gov | https://lacountyhelpcenter.org/

Footnotes:

[1] Proclamation of a State of Emergency, California Executive Department (March 4, 2020), https://www.gov.ca.gov/wp-content/uploads/2020/03/3.4.20-Coronavirus-SOE-Proclamation.pdf.

[2] California Health & Safety Code § 120140.

[3] The applicable laws include: Cal. Gov. Code §§ 8625, 8567, 8527, 8665, and Cal. Health & Safety Code § 120140.

[4] ADA Title III Regulation, 28 C.F.R. § 36.302, available at https://www.ada.gov/regs2010/titleIII_2010/titleIII_2010_regulations.htm#a302.

[5] ADA Title III Regulation, 28 C.F.R. § 36.208, available at https://www.ada.gov/regs2010/titleIII_2010/titleIII_2010_regulations.htm#a208.

[6] State laws will generally prevail when state and local laws are in conflict.  However, there is no blanket answer as to whether any given state law will actually preempt a local law.

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