No Shirt, No Shoes, No Mask, No Service

By Ann E. Evanko, Esq.

We are all familiar with the signs in restaurants, retail businesses, and other establishments open to the public that warn against entering without a shirt or shoes.  These are Health Department directives. We now must become familiar with the “no mask-no entry” rule that private business and store owners/operators now can use to deny individuals entry into their businesses if they have no mask on or refuse to wear a mask or other face-covering. This is a significant expansion of prior Executive Order 202.17.

On May 28, 2020, Governor Andrew Cuomo issued Executive Order 202.34 entitled, “Continuing Temporary Suspension and Modification of Laws Relating to the Disaster Emergency.” The Governor made it clear that he was issuing further directives at least through June 27, 2020 that expressly authorizes “[b]usiness operators and building owners, and those authorized on their behalf…” to exercise the discretion needed to ensure compliance with the directive in Executive Order 202.17” (that is, requiring any individual over the age of two, and able to medically tolerate a face-covering to wear a mask covering one’s nose and mouth in a public place). The new Executive Order expressly empowers businesses to “deny admittance to individuals” who fail to comply with the mask and face-covering directive of Executive Order 202.17, and further authorizes businesses “to require or compel their removal if they fail to adhere to such directive...”  Significantly, any owner or operative who enforces the “no mask-no entry” directive “shall not be subject to a claim of violation of the covenant of quiet enjoyment, or frustration of purpose, solely due to their enforcement of such directive.”

By this new Executive Order, the Governor intends to build on his efforts to keep New Yorkers safe and limit the spread of COVID-19. The specific intent of this new directive is to protect business owners and their employees, restore confidence to the consumer to encourage them to resume “in-store” shopping or “on-site services,” and provide some legal protection for denying access on this basis. It sounds reasonable and appropriate. But, in denying access should you risk conflict with a customer and create potential danger to yourself and your employees?

At first blush it appears that New York has created protections to owners and operators of businesses if they deny entry to their establishments solely because the individual refuses to wear a mask or face-covering.  To deny an individual entry on this basis because you now can do so without apparent legal risk sounds like the appropriate and safe thing to do. But is it the right thing to do in every situation? It may not be. Owners, operators and employees must use their discretion—and this means that staff should be trained in conflict resolution and to anticipate at what point the insistence of wearing a mask should be dropped and other protective measures engaged.

And how protected is the business from liability anyway? Just because you can legally bar entry to anyone without a mask or face-covering does not mean you should do so if it appears likely to be confrontational.

Caution must be exercised as individuals are still protected by the Americans with Disabilities Act, any provision of the New York State or New York City Human Rights Law, or any other provision of the law.  The Governor is only limiting liability with respect to a claim that an individual’s right to quiet enjoyment was violated or there has been a “frustration of purpose.” There is no insulation from liability for engaging in a physical altercation, a claim of a constitutional violation, or any other law. Despite initial commentary to the contrary, the protection the Governor granted is very limited.

Practical tips: If an individual insists on access to your business without a mask or other appropriate face-covering, business owners may be placing their business and their employees at risk if the individual refuses to leave the premises.  What steps can you take to minimize conflict and avoid a confrontation?

  • Train your staff on how to handle and defuse the situation—even an hour of conflict resolution training will be helpful;
  • Place a visible sign posted at the entryway so that individuals know before they enter that a mask for face-covering is required and that you will deny entry without one;
  • Calmly advise the individual of the policy that all those who enter the business must have a face mask or appropriate face-covering that covers the eyes and nose;
  • Have extra masks available to offer to them free of charge;
  • Avoid physical altercations or shouting or demanding threats for non-compliance;
  • Talk to law enforcement (where your business is located) ahead of time to know their recommendations and understand what they are willing to do and how they will respond to a call for assistance on this basis (State and local enforcement agencies can impose fines or other penalties);
  • Create a plan that is part of your safety plan, including telephone numbers of law enforcement to call if the matter is out of your staff’s control;
  • Make sure you and your staff remain calm when confronted with a non-compliant person;
  • If the business can afford to hire a security guard to help you enforce this directive, do so; and
  • Create alternative ways of serving customers without entry such as curbside service.

The right to deny access to an individual who is defiant in not wearing a mask or protective face-covering seems simple but enforcing that right is fraught with potential problems. Train your staff. Be prepared. Be smart. And if it appears that trouble is brewing, avoid it, and call for assistance from local law enforcement or your business and employment counsel.

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