In the wake of Colorado Governor Jared Polis’ announcement of a statewide mask requirement for indoor spaces, businesses can have confidence in the legality of their decision to require customers and employees to cover their faces as a preventative measure to stop the spread of COVID-19. However, Colorado businesses that are places of public accommodation (such as retail stores) should still be conscious of the need to abide by Title III of the Americans with Disabilities Act (“ADA”).
The ADA generally forbids businesses from screening customers based on a disability, unless the criteria are necessary for the business to operate safely. The reasons for excluding a customer based on a disability must be based on actual risks and not speculation or generalizations. At this point, even if a customer claims a disability that prevents them from wearing a mask, businesses are justified in relying on CDC guidance and Colorado’s mask requirement to forbid anyone over the age of 10 without a face covering from entering their stores.
As CDC guidance and state/local rules around COVID-19 change, however, businesses must ensure they are not relying on outdated information, rules or guidance. Furthermore, to avoid potentially unnecessary discomfort or risk for employees in enforcing this policy, businesses should clearly and visibly post any policy regarding masks and denial of service on site, as well as on company websites, so that customers have the ability to be fully informed prior to their visit.
After the state-mandated mask requirements end, businesses that do not have their own policy in place should not turn away customers for not wearing a mask unless the customer poses a “direct threat” to the wellbeing of other customers and employees—such as exhibiting symptoms of COVID-19 and/or refusing to cooperate with other social distancing requirements. To avoid potential legal ramifications, any refusal of service should be well documented and fact-based with regards to precisely what the customer was doing that posed a “direct threat” to the health and safety of others.
The bottom line is that the safest and most risk averse policy is to maintain a mask requirement indoors until there are viable therapies or vaccines to fight COVID-19. Otherwise, businesses may put their employees in tough situations that could be avoided with a thoughtful generalized policy.
Anyone claiming a disability as a justification for refusing to cover their face indoors, will not have a claim against a store for refusing them service unless or until the situation with the virus changes substantially.
If you would like more information about how these regulations may affect your business and how to property implement mask policies, contact Mack Wilding at mwilding@fortislawpartners.com.
