On Friday, May 15, 2020, restaurants and bars were authorized to re-open their patios to customers for outdoor dining and drinking in the state of Ohio. On the same day, personal care businesses (such as hair salons) were permitted to re-open. The businesses in the restaurant industry and personal care industry that opted to re-open over the weekend are accustomed to industry regulations. However, these and other businesses are now faced with the challenge of complying with government mandates and guidelines different from those that existed before the pandemic.
The largest issues businesses are facing regarding re-opening may be related to enforcing social distancing for customers and whether to mandate that customers wear face coverings (masks).
The Ohio Health Department Order issued by Dr. Acton on May 14, 2020, which may be accessed here https://coronavirus.ohio.gov/static/publicorders/Directors-Order-Personal-Services.pdf, provides guidance as to what businesses must do related to social distancing.
Dr. Acton’s Order provides that businesses must take proactive measures to ensure compliance with Social Distancing Requirements, including, where possible, designating six-foot distances with signage, tape, or by other means for employees and customers alike to ensure that individuals remain far enough apart.
Unfortunately, these businesses are finding that it is difficult to enforce social distancing requirements. The challenges with getting customers to comply with these new rules were evident over the weekend.
On Monday, May 18, Governor DeWine held a press conference announcing that the majority of businesses operating over the weekend did so safely and in compliance with Ohio’s mandates. However, some establishments failed to adequately enforce social distancing requirements.
In an admonishment of businesses flouting social distancing requirements, Governor DeWine emphasized businesses have the obligation to control their environments and ensure social distancing occurs. Governor DeWine warned that if you cannot control the environment at your business, you should not choose to be open at this time.
Governor DeWine declared that his administration will be ensuring compliance with Ohio mandates by assembling a combined task force of health department and law enforcement personnel, which will be a part of the Ohio Investigative Unit (“OIU”), to conduct safety compliance checks at businesses.
Governor DeWine advised that the OIU will issue administrative citations which could result in the revocation of liquor licenses. The Governor further asserted he will also work with municipal prosecutors to pursue criminal charges where appropriate.
All businesses, not just bars and restaurants, are responsible for policing their own premises to ensure social distancing occurs. These businesses must enact policies and procedures to ensure that they are compliant with social distancing requirements. If they fail to do so, businesses may face administrative citations and potentially criminal charges.
As it relates to face coverings, pursuant to Dr. Acton’s May 14 Health Department Order, businesses must allow all customers, patrons, visitors, contractors, vendors and similar individuals to use facial coverings, except for specifically documented legal, life, health or safety considerations and limited documented security considerations. According to Ohio’s “Responsible Protocols,” masks are not mandated for customers, but masks are recommended.
However, what if a customer refuses to wear a mask? Can a business refuse service to the customer?
When assessing whether a customer should be turned away for not wearing a mask, businesses should be thinking about the Americans with Disabilities Act (“ADA”) and the public accommodation requirements it imposes. The ADA permits businesses to deny goods or services to an individual with a disability if the presence would result in a “direct threat” to the health and safety of others, but only when the threat is incapable of being eliminated by modifying existing policies, practices, or procedures or by providing an accommodation.
If a business intends to turn away customers for not wearing face coverings, the business should ensure that it has a written policy to this effect and procedures in place to implement the policy. The business should also ensure customers are on notice of the mask requirement by posting signage at the entrance of the store and on the website or social media page for the business.
If a customer is exhibiting generally recognized symptoms of COVID-19, refusal of service without a mask on an individualized basis may be justifiable, as the customer arguably presents a “direct threat” to the health and safety of others. However, if feasible, the business should attempt to offer accommodations that would allow the person to be served, but minimize the risks to employees and the public. Accommodations may include providing curbside service or assistance with placing an order online instead of in the store.
If refusing service to a customer for not wearing a mask or posing a “direct threat,” the business should document the grounds for the decision and the accommodations offered the customer.
In situations where a customer cannot wear a mask for legitimate health reasons, businesses should also offer reasonable accommodations, if feasible. Curbside service or no-contact delivery are possibilities to consider.
Additionally, businesses must be mindful that some customers may rely upon lip reading to communicate. Employees wearing masks that cover their mouths may pose problems for these customers. The ADA requires businesses to provide effective communication to individuals with disabilities. In such circumstances, businesses should have policies informing employees of what to do in such situations and accommodations available to the customer that will allow alternative means for communication, such as text messaging or writing messages to the customer on a pad of paper.
Whether your business has been open or is reopening, you should consult with professionals to make sure you are operating it safely and lawfully. Information on the protocol for your particular business segment can also be found at: https://coronavirus.ohio.gov/wps/portal/gov/covid-19/responsible-restart-ohio/Sector-Specific-Operating-Requirements/
Contributing Attorneys:
Benjamin Mazer
David Pierce
Marc Fleischauer
Disclaimer: The information you obtain at this site is not, nor is it intended to be, legal advice. You should consult an attorney for advice regarding your individual situation. We invite you to contact us and welcome your calls, letters and electronic mail.
