- New York Governor Andrew Cuomo said on Thursday that he will sign an executive order giving businesses the right to refuse service to customers not wearing masks.
- Business Insider previously spoke to employment and corporate policy lawyer Aaron Goldstein and James Biscone, a personal injury and workers’ compensation attorney.
- Goldstein and Biscone both told Business Insider that businesses generally have the right to refuse service to customers who violate their mask-wearing policy, as long as that policy does not discriminate on the basis of disability.
- Goldstein emphasised that the “First Amendment rights” touted by many customers who refuse to wear masks don’t actually apply to private enterprises.
- Cuomo’s new executive order would solidify businesses’ position in the case of a conflict with a customer who refuses to wear a mask.
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Masks have become a major source of conflict between business owners and customers. Chains like Costco have already implemented policies requiring customers to wear masks, causing outrage and even violence in some cases.
But during a media address on Thursday, New York Governor Cuomo eliminated all uncertainty for New York State residents in the case of such a conflict. Cuomo announced he would sign an executive order giving business owners the right to refuse service to customers not wearing a mask.
“You don’t have a right to walk in a store and cause all the other patrons to run out because you’re not wearing a mask,” Cuomo said in his morning address on Thursday.
Even outside of New York, businesses already have that right in most cases. Business Insider spoke to lawyer Aaron Goldstein, a partner at Dorsey & Whitney LLP specializing in employment and corporate policy, and James Biscone, a personal injury and workers’ compensation attorney at Johnson & Biscone, to see what legal power businesses across America have to eject customers who don’t comply with mask-wearing policies.
“Absent some kind of discrimination claim, the company is free to tell patrons, ‘Either wear a mask, or you’re not allowed in,'” Goldstein said. “A mask situation is like the no shirt, no shoes, no service policy we see everywhere.”
“Businesses have a right to require masks and to refuse entry or service to an individual who is not wearing a mask,” Biscone said. “Think of the requirement to wear a mask as the same as banning smoking inside of a store. The patron has a right to smoke, but a business can restrict that right inside of its walls for the safety, comfort, and peace of mind of other people.”
However, Biscone emphasised that there are exceptions to this rule. A customer who is physically unable to wear a mask would be “difficult to turn away” because of the Americans with Disabilities Act, which prohibits discrimination to people with disabilities in many areas of public life, including retail stores. In this case, a customer can sue the business for the right to enter without a mask. Many stores exempt children and those who are physically unable to wear masks from mask requirements.
But since masks are a safety measure designed to keep others safe, Biscone says that mask requirements are still “probably not” an unreasonable accommodation request. And Goldstein said that in current circumstances, companies are on stronger footing than they normally would be as masks are a matter of public safety.
“If someone decided to sue, it’s not clear what their damages would be,” Goldstein said. “They would have to bring a lawsuit specifically allowing them to patronize the store without wearing a mask.”
If a customer chooses to defy a mask-wearing policy for anything other than physical incapability, the business has the legal right to eject them from the premises. Goldstein recommends that businesses call law enforcement when they encounter a noncompliant customer. Cuomo’s new policy would put business owners on stronger footing should they choose to do so.
However, Biscone said that even though businesses may have a legal right to remove a customer from its premises for violating its policy, actually enforcing that policy may be harder. And businesses with a mask-wearing policy should communicate that policy clearly to its customers.
“A business can refuse service to a patron, but a true enforcement and removal from the premises would be difficult. I anticipate this is where lawsuits will be filed and state courts will have to decide where the line is drawn between the rights of a business and an individual’s personal rights,” Biscone said.
Goldstein emphasised that a common misconception that seems to be prevalent about the First Amendment is that it applies to private parties as well as government.
“It’s always fascinating to me to see how misinterpreted and misquoted the law gets in situations like this. People have this knee-jerk assumption about what their ‘rights’ must be, and they aggressively purport those rights and aggressively ‘defend’ them, but they don’t even exist,” Goldstein said.
Retail workers bear the brunt of anger and violence from customers who refuse to wear masks. In addition to the confrontation recorded in the infamous Costco video, there have been incidents at countless other stores. Earlier this month, a Family Dollar security guard in Michigan was shot and killed after telling a customer she needed to wear a mask in the store, and a customer opened fire at an Aurora, Colorado, Waffle House after a cook told him to wear a mask.
“I think this will reduce conflict,” Cuomo said of his new executive order. Cuomo said that when it comes to the issue of wearing masks, the small, confined spaces in stores give rise to conflict in ways that open streets do not.
Cuomo’s new executive order would remove uncertainty for business owners, and will eliminate the need for them to have an existing, clearly-communicated mask policy in order to remove a maskless customer from their business. It’s also an assurance of support in the case of an increasingly common conflict.