Just as important as your responsibilities (covered here), business owners have rights to protect themselves, employees, and clientele.

Can I require patrons to wear a mask?

In most cases, yes. Just like many businesses have a “No Shirt, No Shoes, No Service” policy, you may also have a “No Mask, No Service” policy for your clients and customers. You may ask someone to leave the premises if they do not comply with your posted policies.

However, under the Americans with Disability Act someone who has a disability that prevents them from wearing a mask cannot be refused service due to their disability.

Current guidance dictates that children younger than two years old not wear masks, either.

If you are going to institute a “No Mask, No Service” policy, be sure the policy is posted on your door prior in clear view to all customers before they enter. You may also consider providing disposable masks at the door if someone doesn’t have their own.

Develop a plan for your employees to enforce the policy—how they should approach the noncompliant individual, how to manage an individual with a disability that prevents them from wearing a mask (perhaps limiting the number of customers and clients from entering while they are conducting their business), and how to safely escalate (or de-escalate) the situation.

If your business engages with members of the public frequently, such as in retail or food service, you may want to come up with a script and rehearse different situations with your staff so they’re more comfortable and confident in asking clients and customers to wear a mask.

What do I do if an employee is too scared to return to work? 

These are uncertain times and it is not unreasonable for people to be concerned about their health, and the health of their families. There are several circumstances where an employee may not be able to return to work, and accommodations will need to be made.

An underlying health condition may make them more at risk for infection, for instance. In this case, reasonable accommodations need to be made by the employer. If working from home isn’t feasible due to the nature of their position, they will likely qualify for extended unemployment under the CARES Act.

If the employee feels that their place of business isn’t following the prevailing conditions of work in the area in terms of safety, they may also be eligible for unemployment. However, if that is the case, as the business owner you may need to put in place policies and practices to come into line with your business cohort.

If it is a matter of childcare being closed due to COVID-19, the Families First Act will provide a short-term paid leave benefit (read our article about it here).

But fear alone isn’t enough for an employee to not return to work and stay on unemployment.

We are here for you.

Call (914-946-2889) or email us at Francis J. Malara or Anne Penachio with any questions or for a free consultation.

Additional Resources

The Centers for Disease Control and Prevention’s Interim Guidance for Businesses and Employers.

The National Federation of Independent Businesses has a comprehensive Small Business FAQ section, including on issues surrounding reopening.

The New York State Department of Health has a Novel Coronavirus Information page.

Read the Workplace Rights and COVID-19 Fact Sheet by the New York Legal Assistance Group (NYLAG) for a summary of city, state, and federal laws that protect employees.

The Department of Labor has a Families First Q&A here.


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