Almost a year later has passed since the outbreak of the worldwide pandemic. In just weeks, cities, states, and countries shut down, with experts and officials requiring social distancing, sheltering in place, and wearing masks. States instituted mask policies, requiring masks in gyms, businesses, and mixed households.
Businesses’ Rights After Executive Order lifts Texas Mask Mandate
A Texas State Mask Mandate instituted last year by Governor Abbott was recently lifted. This Executive Order, dated March 2, 2021, strongly encourages (not requires or mandates) individuals to still wear face coverings. Additionally, it states that businesses/other establishments are not prevented from requiring additional hygiene measures, like wearing a face covering from individuals.
A question many businesses will ask is “Do we have the legal right to still require and enforce masks?”
Businesses have the option to require masks and social distancing inside their establishments – just like they can require “no shirt, no shoes, no service”. This being said, if businesses are continuing to require masks/face coverings for entrance, businesses should be transparent and clearly post signs about policies.
Encounters with ADA Compliance
From a precedent set in Koa v. Hogan, courts will likely require an exception for those whose medical condition or disability prevents safely covering airways. Because the ADA prevents discrimination based on disability, businesses will need to make sure they follow ADA guidelines. Here are a few things for businesses to know:
- The rights of a disabled person are not greater than that of the business to require masks or refuse service.
- A business cannot only refuse to provide a service/good to someone who refuses to wear a mask due to a disability. The business must try to provide the services using a different way, i.e., curbside pick-up, delivery, etc.
- If a business feels that providing the service to someone not wearing a mask is unsafe, the business does not need to provide the service.
Encounters with the First Amendment
Besides receiving resistance for reasons due to disability, a business is susceptible to violation of the First Amendment. Thanks to a Florida court decision, citing Jacobsen vs. Massachusetts, “the requirement to wear such a covering has a clear rational basis based on the protection of health… Constitutional rights and the ideals of limited government do not… allow [citizens] to wholly shirk their social obligation to their fellow Americans or to society as a whole… After all, we do not have a constitutional right to infect others [Prince vs. Massachusetts].”
Businesses Have the Rights
Masks does not limit one from expressing oneself. However, the First Amendment, and other constitutional rights, are subjected to government – “police powers”. This gives state and local governments authority. It brings us back to the Executive Order from Governor Abbott.
It’s up to you – the business – but make sure to follow ADA protocol for those having disabilities.
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