Reopening: Can a Private Business Require that Its Patrons Wear Masks to Mitigate COVID-19 Risks?

As businesses reopen following the early 2020 lockdown due to the COVID-19 pandemic, some business owners are concerned as to whether they are permitted to require customers/clients to wear protective masks while inside the business.  The simple answer is “yes”.  Dress codes are nothing new.  For years, customers have seen, but possibly not paid much attention to signs reading “NO SHOES • NO SHIRT • NO SERVICE” and “PROPRIETOR RESERVES THE RIGHT TO REFUSE SERVICE TO ANYONE”. 

Anyone who has patronized an upscale restaurant or nightclub likely has seen signs reading “PROPER ATTIRE REQUIRED”.  Bowling alleys require that patrons wear only bowling shoes while bowling, shooting ranges require patrons wear protective eyewear, facilities with swimming pools require patrons wear swim attire in certain areas, but prohibit it in other areas.  In short, businesses have always been allowed to require or forbid certain attire.  The requirement for a protective facial covering is no different.  The limitation to a dress code, however, is that it must be consistently enforced.  For example, a business is not allowed to enforce a dress code only against patrons (or would-be patrons) of a particular race or ethnic background.  Along those lines, business owners with multiple locations throughout a city may want to be mindful of having the same rules apply regardless of the demographic composition of the neighborhood in which any particular location is situated.  In developing company policy, business owners should contact an attorney to assist with drafting or to review the already drafted policy.

Still, some business owners may be worried about legally infringing upon their customers’ rights, for example, not wanting to violate a customer’s First Amendment rights.  The simple answer is that privately-owned businesses typically are incapable of violating a customer’s First Amendment rights.  The Bill of Rights (first 10 amendments to the U.S. Constitution) generally protects individual liberties from actions by the government, not private companies. 

Displaying a sign reading “NO MASK NO SERVICE” may be meaningless unless the dress code is enforced.  In a prior blog, we discussed that a re-opening business needs a plan to protect itself and its customers. (https://www.bbsclaw.com/reopening-how-to-protect-your-clients-customers-and-business-amidst-covid-19-risks/)  That plan should include how a business will handle patrons who might refuse to abide by a requirement that they wear masks.  Again, there must be consistency in enforcement.  Consistency, however, is only possible if there is a written policy for employees to reference when engaging with customers who fail to abide by the dress code.

For help creating or reviewing a plan, contact Anthony P. Ashton at Baxter Baker, 410-230-3802, apa@bbsclaw.com.

*This material does not constitute legal advice and does not create an attorney-client relationship.