The Mask Question is Not a Question Anymore for Pennsylvania Businesses

Whether it be in our personal lives or our business lives, the question of face masks is rarely missing. We have all observed our families, friends, neighbors, customers, and co-workers engaged in various levels of face mask compliance. Regardless of the political overtones, or the actual health benefits, the most important goal for business owners in the retail sector is to focus on protecting their employees and customers. In so doing, they are also protecting themselves from potential liability. In the current context of Pennsylvania face mask policy, the business owner has little choice but to require a mask for both employees and customers.

On April 15, 2020, the Commonwealth of Pennsylvania, through the Secretary of the Pennsylvania Department of Health, issued a Business Safety Order that outlines the obligations of Pennsylvania businesses relative to their employees and their customers. In part, the order directs an employer to provide employees with masks and makes it a mandatory requirement for employees to wear masks while on the worksite. In simple terms, wearing a mask is a condition of employment, and refusal is ground for termination. However, prior to ending employment, inquiries should be made to determine if the employee has a medical condition that prevents a face covering. As an aside, the order further directs that employers provide employees with access to handwashing facilities, hand sanitizer, and disinfectant wipes.

From a customer perspective, the order directs businesses to make mask-wearing mandatory for its customers and directs a business to deny entry to any customer who is not wearing a mask. There are exceptions to this rule involving individuals who have medical reasons establishing that they cannot wear a face covering. The Business Safety Order also references limiting the number of persons in the store, establishing social distancing, and making physical changes to the premises to facilitate the separation of employees from customers.

The original order was relaxed to some extent in June and July, but the secretary issued an updated order on July 1, 2020. The updated order specifically directs that all Pennsylvania citizens wear face coverings if they are outdoors and unable to maintain a 6-foot separation from other individuals, who are not members of their household. Face coverings are strictly required in any indoor location where members of the public are generally permitted. Face coverings are also required on public transportation and while visiting healthcare facilities. Most importantly, the order specifically reinforces the fact that employees at the workplace must wear a face covering when interacting in-person with any member of the public.

Consider the following FAQ pulled directly from the Pennsylvania Department of Health Website:

Do businesses need to deny entry to those not 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 the customer 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 curbside pick-up. Other businesses besides those that provide medication, medical supplies, or food should consider providing services through home delivery or contactless curbside pick-up where possible.  The Order does not require a customer to be turned away if the customer fits within an exception to the Order.  The Order states that an individual is not required to show documentation that an exception applies.  

If the customer is refused service, and if the business is not able to provide a face covering, the business should consider providing information on mask making, distributing "how to" flyers, or sharing information about where masks can be purchased. If a customer is belligerent 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 or put themselves in a potentially dangerous situation.

The Department wants to emphasize that it does not expect businesses to put employees in harm's way.  Again, in making a determination about whether or not to comply with the order, an individual should consider not only his or her right to make that decision, but his or her responsibility to family, friends, and other persons with whom they may contact, and to whom they may spread disease.

The above orders, as issued by the secretary make clear that masks are required for all employees and all customers, absent a medical excuse. Failure to adhere to the orders unquestionably opens a business owner to liability should an employee or a customer become infected. Assuming a worker acquires COVID-19, the employer can fully expect to receive a worker’s compensation claim. If a member of the public becomes infected, the business may be served with a complaint based upon a negligence theory or a premises liability theory. In either event, the first round of inquiry will revolve around whether the retailer was adhering to state requirements regarding the use of face coverings.

Should there be any further doubt relative to the wisdom of requiring a mask, one need only look at major retailers across the United States. There is a significant trend in major retailers requiring masks, regardless of whether their state or local governments require a mask. (28 states had a mandatory face-covering policy when this article was written.) There are a few well-known outliers but even these retailers have changed their approach.  Winn-Dixie, a large grocery store chain in the south, had a hold-out on mandatory masks for customers, recently changed course, and now requires its customers to wear masks.

As a practical matter, the mandatory mask requirement puts employers in a difficult, if not untenable position. Employers are serving as de facto enforcers of the state order. Employers should instruct their employees to wear masks and request that customers wear a mask as well. More specifically, employees must deny service to customers who do not wear a mask. The employee should be counseled to approach customers in a non-confrontational way and appeal to their reason. Employees should direct customers to the signage posted in the store that explains the policy as well as the state order. If the customer fails to comply and makes repeated efforts to enter the store without a mask, the business owner has the option of calling the non-emergency number of the local police to report the customer. This is the option of last resort.

The COVID-19 pandemic has left employers and business owners with limited choices. As the government response has evolved, business owners’ obligations have been made clear. The existence of government guidance, and the failure to adhere to said guidelines, will unquestionably increase the risk of legal action against the business owner, should an employee or customer become ill. For this reason, business owners would be well served to monitor government guidelines and comply accordingly.

Further questions or specific incidents should be discussed with legal counsel.