Once an uncommon sighting on American streets, face masks have become a new staple because of the pandemic.
Although the coronavirus has caused a series of unprecedented government actions — for instance, the widespread closure of “nonessential” businesses — the legality of requiring (rather than encouraging) face masks falls into somewhat murky territory, according to fashion law attorney and brand consultant Elizabeth Kurpis.
“Technically, I believe [stores] do have the legal right [to kick out customers for not wearing masks], similar to a store having the right to refuse entry to those not wearing a shirt or shoes,” Kurpis explained. However, she cautioned: “Enforcement can get tricky though, and many stores may not be willing to create conflict or put their employees or customers at a higher risk of infection by confronting customers not wearing a mask.”
Several states — including New York, New Jersey and Connecticut — are now requiring individuals to wear face masks in public when shopping or riding public transit, as social distancing may not be possible. A smattering of cities across the country have rolled out similar mandates.
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However, such orders have in some cases sparked backlash. For instance, Ohio Gov. Mike DeWine announced on April 27 that Ohioans would be required to wear face masks, but he reversed his decision the following day, deciding after public backlash that “people were not going to accept the government telling them what to do.” Meanwhile, Stillwater, Okla. implemented a face mask requirement after the state lifted stay-at-home orders. But Mayor Will Joyce amended his order hours later (instead “encouraging” the use of face masks) after employees at stores reported instances of physical violence and verbal abuse.
While it’s clear that some Americans object to being asked to wear face masks, the constitutionality of mandating them is less certain. According to Kurpis, one of a bigger questions is whether such mandates disproportionately impact the poor or those who are unable to wear face masks due to medical conditions.
“‘Essential’ stores are allowed to remain open during this pandemic for one reason. The goods they are selling are deemed essential. Requiring customers to wear masks suddenly puts a certain subset of people who can’t afford to purchase masks in a tough spot, particularly in a marketplace where price gouging has been rampant. And this is assuming masks are readily available, which we know has been a recurring problem since day 1,” Kurpis said. “[C]an it be argued that those without masks are unable to exercise fundamental constitutional rights, such as leaving their home for essential goods, while other, more affluent people can? It starts to get complicated quickly.”
As the pandemic spread across the United States and essential retailers like Walmart and Amazon contended with members of their ranks falling, many such firms have moved to mandate that employees wear masks. Some, like Costco, have taken that mandate a step further, requiring that shoppers wear face coverings. Although Kurpis believes stores “probably” have the right to enforce the wearing of face masks to protect employees and shoppers, she notes that such policies may open stores up to “litigation down the line on other grounds.”
As lockdowns start to ease in some states, and retailers reopen with enhanced cleaning and safety protocols, including mask requirements for workers, it’s becoming clear that store associates may not be the only ones required to wear face masks to work. In an April episode of FN’s “Leading in a Crisis” webinar series, Fila North America president Jennifer Estabrook forecasted that masks could be part of daily life for employees across all sectors for some time to come.
“We’re going through our planning of social distancing, staggering the workforce, everyone’s going to have masks and temperature checks and all those things,” Estabrook said. “I understand that some people may not be comfortable with [temperature checks], but this is a time we need to think about other people. That’s why we all need to wear masks — to protect other people … I think we’re all going to be wearing masks for a long time.”