No Shirt, No Shoes…No Mask? What Your Restaurant Needs to Know About Mask Policies and Vaccination Statuses

As the country’s hospitality industry continues to open up, we at MMB have been inundated with questions about mask policies and vaccination statuses. Specifically, in the face of a rising delta variant — but no state or federal mask mandates — restaurant owners want to know: can I have a mask policy, and if so, can I enforce it? And can I require my customers to provide their vaccination status or a negative COVID test result?

While the answer can be complicated, the general response is this: learn from the hippies.

That’s right. When it comes to the enforcement of mask policies in restaurants, the basic guidelines are fairly clear, and we have the hippie movement to thank for it. In the 1960s, when the throes of the Vietnam war pushed the counterculture movement to prominence for its anti-establishment rhetoric and public displays of protest, many business owners worried that their restaurants — often populated only by those who could afford to dine out — would become yet another victim of the counterculture wave, with the so-called “hippies” (and their disheveled appearance) driving well-paying customers to go elsewhere. Their solution? Something you’ve probably grown quite accustomed to: “No Shirt, No Shoes, No Service.” And despite some of the early claims about that policy, the facts still resonate today: as a private business, you’re entitled to refuse service to anyone, as long as it’s not discriminatory. However, there are important factors and policies to consider.

Can I make customers wear a mask inside my restaurant?

Yes, as long as the enforcement of the policy is in no way discriminatory or pretextual (discrimination in disguise), and as long as it provides exceptions, also known as reasonable accommodations, for certain customers (more on that later). Recent rhetoric, along with countless news stories, has suggested that many customers believe they have a constitutional right to not wear a mask. This is not the case, and oftentimes the “no shirt, no shoes” analogy helps frustrated customers understand a mask policy in a commonly accepted way. The Constitution protects certain individual rights from infringement by the federal government. Barring any legal decision or court precedent otherwise (such as discriminatory practices), it is not triggered in a claim against private businesses.

How should my mask policy be enforced?

It should be enforced fairly and evenly in a non-discriminatory fashion. Consistent enforcement is key. This is where many businesses get into trouble, typically because their staff are not universally trained in the law and how to handle enforcement of private policies. Let’s use a hypothetical to explain. Suppose you have two shift-staffs who work at alternating times of day. When Shift A is working in the morning, the restaurant is crowded and the staff decides to prioritize service, not policy. As a result, maskless patrons are served without question. Now suppose the restaurant is near an office building, and the morning clientele leans heavily toward young business professionals. The afternoon clientele, however, leans more toward a community makeup, with many older patrons making their way in. When Shift B is working during that time, and the pace of business is slower, the staff tells unmasked patrons (who, again, for the sake of the hypothetical, happen to be older) that they need to either put a mask on or leave. Since age is a protected class under federal law, you can see how this gets complicated — and even more so if, say, race or religion is involved.

What about proof of vaccination policies?

This is a trickier area, because requiring a vaccine or recent negative COVID test triggers a large set of healthcare and privacy laws. Unfortunately, we don’t yet know a lot about how challenges to these policies will hold up. However, the recent FDA approval of the Pfizer vaccine will go a long way toward strengthening businesses’ rights to require proof of vaccination or, in the alternative, a negative test result. Some restaurants have taken a hardline, no-exceptions approach to customers. Yet other restaurants permit customers in either camp to dine in outside spaces.

What if a customer can’t wear a mask because of a disability?

Title III of the Americans with Disabilities Act requires restaurants to provide equal enjoyment of goods and services to individuals with disabilities. If a customer’s disability is not obvious to your staff, then the guest must advise your restaurant that an accommodation is needed. You and your staff should be prepared to fulfill that request, so long as it does not impede your business’ ability to safely provide your goods and services (a caveat which seems to be consistently changing depending on the current CDC guidance).

What should I do if a guest requests an accommodation?

Your staff should be trained on how to handle this situation within the bounds of local, state, and federal laws. As an initial matter, no one should ask the guest for medical documentation for a disability or health condition, as this implicates privacy concerns and likely violates the law. A good first step would be to ensure that your restaurant offers no-contact food options and continues to do so even if the pandemic wanes, or provide reasonable accommodations that maximize access while minimizing safety risks.

What do I do if a guest refuses to wear a mask?

This is the proverbial $64,000 question, and one many of our clients have asked us. The answer is in effective training, selective resources, and clear guidelines. Every restaurant is different, and you should always consult with an attorney before developing your plan, but here’s some practical guidance:

  • Signage regarding your mask policy should be clear, obvious, and abundant. The CDC recommends everything from verbal proclamations to nonverbal signs to visual cues throughout the restaurant. Some businesses have found a larger rate of adoption success by using humor to create the message.
  • Focus on employee safety. This helps not only your internal messaging, but also sends a clear visual signal to entering patrons that the institution cares about keeping people safe.
  • Provide no-contact options, as stated earlier, even once the pandemic slows. Make the signage for this service obvious, and ensure that non-compliant customers should seek out the alternative arrangements.
  • Have free masks on-hand and easily accessible. Many patrons are not opposed to wearing a mask, but they may be opposed to walking back out to their car to grab one, especially if they plan to take it off in a few minutes to enjoy their food.
  • Hold frequent training sessions for your employees on how to handle non-compliant customers. They must remain calm and not inhibit a customer’s ability to enter or exit the store. They should know who to call when a situation arises and the precise protocol for navigating it.
  • Consider allocating well-adjusted staff members across shifts. Every employee has different strengths. You want the most people-friendly and even-handed employees handling difficult customers. This increases the likelihood of compliance and decreases the chances of escalation.

What else can I do?

As with any situation involving employees and customers, the goals and guidelines are ever-changing. Without the proper channels in place, your restaurant could easily find that its food isn’t the only thing in hot water. You want to be well-versed in issue-avoidance and prepared in the event of a problem. Whether it’s drafting a policy, communicating it internally or externally, training your employees, or navigating a complex legal issue either before or after it arises, we’re here to help.

 

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Matt is a trial lawyer specializing in real estate, land use, and business litigation. He focuses on finding practical solutions to his clients’ disputes and helps them reach their business objectives through the strategic use of both litigation and non-litigation methods.