While the use of masks to combat the spread of COVID-19 has become a politicized issue in the United States, the scientific community largely agrees that wearing face coverings is one of the most effective ways to slow infections.1 State and local governments have issued orders requiring residents to wear masks in public, with some advising employers to provide their employees with face coverings or reimburse the reasonable cost of obtaining one.2 Governor Gavin Newsom of California, for example, has issued a number of mandates to slow infections. One of those mandates is that all individuals must wear a mask or face covering in public or common spaces statewide. Federal agencies such as the CDC and OSHA have issued non-binding guidelines that also advise people to wear masks in public.3
It might seem that as long as businesses comply with these federal, state, and local requirements and guidelines regarding masks, they can expect to be shielded from lawsuits related to their mask-related policies.4 A few recently filed putative class action lawsuits, however, show that plaintiffs and their attorneys are nevertheless seeking ways to turn mask issues into litigation.
Mask-Related Lawsuits Alleging Violations of the Americans with Disabilities Act ("ADA")
The ADA prohibits discrimination against people with disabilities in employment (Title I)5 and in places of public accommodation (Title III).6 In recent months, several plaintiffs alleging disabilities have filed lawsuits claiming that businesses they have frequented violated Title III of the ADA by denying the plaintiffs public accommodations due to the businesses' mask policies.
First, on July 30, 2020, Cali Bunn, who alleges that she suffers from a severe hearing loss, filed a class action complaint against Nike, Inc. in San Francisco County Superior Court.7 According to Bunn, she relies on lip reading and visual cues to understand speech. Bunn alleges that while she was visiting a Nike store in San Diego, she had difficulty understanding the salesperson because the salesperson wore a face mask. Bunn alleges she felt embarrassed and was deprived of "friendly and personalized customer service" due to her disability.8
Then, on August 21, 2020, more than 60 plaintiffs filed a complaint against Giant Eagle, Inc. and C&J Grocery Co., LLC (owner and operator of a Giant Eagle store) ("Giant Eagle") in the Western District of Pennsylvania.9 The plaintiffs allege they suffer from respiratory limitations, asthma, nervous system issues, and/or post-traumatic stress disorder, among other conditions, which allegedly prevents them from being able to wear masks. The plaintiffs further allege that Giant Eagle employees refused to allow them to shop at the Giant Eagle stores and asked them to leave because they were not wearing masks. Plaintiffs also claim that "there was no significant risk to the health or safety of others if Giant Eagle modified its policies, practices and procedures" by allowing them to shop without masks and noted that the CDC acknowledged "the need for a medical exception to the mask requirement."10
These lawsuits show that businesses should give careful thought to balancing the need to comply with applicable federal, state, and local orders and guidelines regarding the use of masks and providing reasonable accommodations for people with disabilities under the ADA. There is no one-size-fits-all approach for striking the right balance between complying with the ADA and efforts to stop the spread of COVID-19. Companies should consider what alternatives for patrons with disabilities are reasonable and economically feasible based on the nature of their public-facing businesses. Options for customers and other visitors whose disabilities prevent them from wearing masks may include, where feasible, providing expanded curbside, online, or other contactless services.
Employee Lawsuits Regarding Face Mask Policies
Companies should also consider that the mask-related policies they adopt and enforce for their customers may not be the right fit for their employees. In recent months, employees have filed suit against their employers seeking damages for allegedly dangerous working conditions related to COVID-19. Some of these claims are based on purportedly unsafe mask practices.
For example, on May 19, 2020, employees and their family members filed a putative class action lawsuit in Illinois state court against the McDonald's Corporation and a subsidiary alleging claims for public nuisance and negligence due to the alleged failure of McDonald's to maintain adequate COVID-19 safety protocols.11 The employees allege that in some McDonald's restaurants, workers do not regularly wear masks.12 The employees further allege that they each were provided with only one mask, which became dirty after multiple uses. The court granted in part plaintiffs' emergency motion for a preliminary injunction. The court found that although a McDonald's subsidiary provided employees with a sufficient number of masks, the subsidiary was not enforcing its mask policy or complying with the Illinois Governor's mask requirements. The court ordered the McDonald's subsidiary to train employees on social distancing in a manner consistent with the Governor's executive order and enforce mask wearing policies when employees are not six feet apart.
COVID-19 presents a new safety concern for employers. Consulting with counsel can help determine what safeguards can and should be implemented in the workplace. Depending on the nature of the work and workplace, issues employers may want to consider could include remote work options, flexible return-to-work plans, appropriate and feasible return-to-work logistics, and reasonable accommodations for vulnerable groups.
With so many constituents, businesses may feel as if they are caught between a rock and a hard place. On one hand, customers are suing businesses for requiring them to wear masks. On the other hand, employees are suing them for not enforcing mask-related policies and guidelines. In developing their COVID-19 protocols, businesses must simultaneously consider their obligations as public accommodations to customers and other visitors and their obligations as employers. Doing so requires not only knowledge of applicable rules and guidance but also an eye toward flexibility.
1 "Use of Masks to Help Slow the Spread of COVID-19." Centers for Disease Control and Prevention. Accessed September 16, 2020. https://www.cdc.gov/coronavirus/2019-ncov/prevent-getting-sick/diy-cloth-face-coverings.html.
2 "Industry Guidance to Reduce Risk." Coronavirus COVID-19 Response. California, State Government. Accessed September 16, 2020. https://covid19.ca.gov/industry-guidance/.
3 "Use Masks to Help Slow Spread." Centers for Disease Control and Prevention. Centers for Disease Control and
Prevention. Accessed September 16, 2020. https://www.cdc.gov/coronavirus/2019-ncov/prevent-getting-sick/diy-cloth-face-coverings.html; see also United States Department of Labor. COVID-19 Frequently Asked Questions, Occupational Safety and Health Administration. Accessed September 16, 2020. https://www.osha.gov/SLTC/covid-19/covid-19-faq.html.
4 The HEALS Act, the Senate's July proposed stimulus package, included the SAFE TO WORK Act, which, if enacted, would create a broad liability shield for employers and businesses faced with coronavirus exposure claims as well as certain other specified coronavirus-related claims. Safeguarding America's Frontline Employees to Offer Work Opportunities Required to Kickstart the Economy Act ("SAFE TO WORK ACT"), S.4317, 116th Cong. (2020); see also "The SAFE TO WORK Act: An In-Depth Guide for Employers to the Senate's Proposed Coronavirus Liability Shield." Morrison & Foerster LLP. Accessed September 17, 2020. https://www.mofo.com/resources/insights/200811-safe-to-work-act.html. With the House and Senate unable to agree on a stimulus package, the SAFE TO WORK Act has thus far not progressed past its assignment to the Senate Judiciary Committee on July 27, 2020. In the meantime, several states (not including California) have enacted legislation shielding businesses from civil liability for COVID-19-related injuries, losses, or deaths. [See, e.g. COVID-19 Liab. Safe Harbor, 2020 N.C. ALS 89, 2020 N.C. Sess. Laws 89, 2020 N.C. Ch. 89, 2019 N.C. HB 118, enacted, July 2, 2020; Georgia COVID-19 Pandemic Business Safety Act, 2020 Ga. ALS 588, 2020 Ga. Laws 588, 2020 Ga. Act 588, 2020 Ga. SB 359, enacted August 5, 2020; and 2020 Bill Text NV S.B. 4B, enacted August 11, 2020.]
5 42 U.S.C. §§ 12111-12117.
6 42 U.S.C. § 12182(a).
7 Cali Bunn v. Nike, Inc., (S.F.Super.Ct., Jul. 30, 2020, No. CGC-20-585683) 2020 WL 4383483.
8 See Bunn Compl. ¶ 11.
9 Second Amended Consolidated Complaint, Pletcher v. Giant Eagle, Inc., No. 2:20-cv-754 NBF (W.D. Pa. Aug. 21, 2020), ECF No. 32.
10 See Pletcher SACC ¶ 290.
11 Massey v. McDonald's Corp. et al., No. 20 CH 4247, 2020 Ill. Cir. LEXIS 465 (Ill. Cir. Ct. June 24, 2020).
12 See Complaint, Massey v. McDonald's Corp. et al., No. 20 CH 4247 at ¶ 81 (Ill. Cir. Ct. June 24, 2020).
Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.
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