Business Stands By Policy After Maskless Customer Asked To Leave

SALT LAKE CITY, Utah – As more businesses welcome back customers, owners are faced with the question of how to reopen their business safely, prompting a debate that’s playing out online and in some stores: Should businesses require customers to wear masks?

“I can make that decision,” said Emily Moore, who requires all of her customers to wear masks when shopping at Home Again Consignment. “I don’t make it lightly, but I make it because I care. It’s a small thing that I can do while you’re in the four walls of my store.”

Like so many other businesses, the last couple of months have been rough for Home Again, which just reopened Monday after six weeks of being closed. Moore first opened her shop up in Sugarhouse 21 years ago. And this pandemic has topped anything else the business has experienced, including the 2008 recession.

“That was a slow bleed,” she said. “This was just instant cut off the arm. It was rough, but we made it.”

The county has a list of requirements for shops like Moore’s, including that employees wear masks. When Moore reopened on Monday, she joined a growing list of small and big businesses extending the mask requirement to customers. A sign sits outside the shop notifying customers as they enter.

“It’s not a mandate by the government. This is a personal decision,” she said, noting the older age of some of her employees and regular customers. “It has nothing to do with anything other than me trying to respect the people who are here shopping and my employees.”

Still, for some customers, the message has had the opposite effect.

“I simply turned to her and said, ‘Well, you’ve lost a customer,’” said Mark Todd, who walked into Home Again to look around without a mask.

“I didn’t know they had a policy …” Todd said. “Within in two seconds of walking into that store I saw things that I liked.”

But his trip wouldn’t last long. He said a woman approached him, notified him of the store’s mask policy and told him he would need to leave if he didn’t have one.

“She wasn’t aggressive or mean about it. But it was clear that I didn’t have a mask on and it was clear I wasn’t welcome in the store without one,” he said. “I just feel like I have the right whether I wear a mask or don’t wear a mask.”

Todd said he felt like his rights had been violated, though he admits he didn’t realize until later the rights of businesses.

“I guess I didn’t realize the store had a right to make that policy. That’s why I was so angry,” he said.

Still, it hasn’t changed his and others’ view that the decision should be left up to the customer.

“Maybe just be welcoming instead of exclusionary,” Todd said. “That’s all.”

“This is a small, small inconvenience for hopefully a short amount of time,” Moore said. “In my store, I want people to feel safe.”

There are few exceptions to the mask rule, according to an attorney with expertise on the Americans with Disabilities Act, or ADA.

“If the reason they need that accommodation is not because of a disability (but) just because they don’t want to, the ADA offers them no protections,” said Nate Crippes, a staff attorney at the non-profit Disability Law Center.

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Crippes said there are instances where someone could say they can’t wear a mask because of a disability like COPD, for example, which makes it hard to breathe. Or they may have a disability that makes it impossible for a person to physically put on a mask themselves. But even then, it doesn’t mean a business has to allow people to not wear a mask.

“The ADA does have an affirmative defense, which says that, if an accommodation presents a direct threat to the health and safety of others, it doesn’t have to be provided,” he said.

But the law does require a business to allow an alternative accommodation. At a store, that could mean having different high-risk shopping hours, online shopping or having an employee get the items for a customer. If you can’t wear a mask for an extended period of time, Crippes suggests making a request for an alternative accommodation in writing.

As far as disclosing a disability, Crippes said you may have a little protection against disclosing a disability under the ADA, but HIPAA only prevents healthcare providers from sharing your medical history and doesn’t apply to private citizens.

Crippes also pointed out that businesses cannot be fined under the ADA.

“There are not fines imposed for ADA violations,” he said. “Certainly not under Title I or Title III. When you’re talking about private businesses or government agencies, you’re not really going to see damages even.”