Attorneys offers advice for restaurant operators to keep the situation from escalating
Masks and other face coverings intended to stop the spread of the novel coronavirus have inadvertently fueled a battle that sometimes seems to rival those of Lexington and Concord.
“I think it’s a handful of situations, but they are high-profile,” said Andria Ryan, below, an Atlanta partner in the law firm of Fisher Phillips and co-chair of the firm’s hospitality team. “Most of the public is compliant.”
But in the era of social media and political division, restaurant mask rules can quickly spiral into a federal case — literally.
“Especially in the restaurant industry, so many of our employees are young,” Ryan said in an interview. “We need to teach them this is not the time to argue with a customer over an issue. Treat this just like a customer who is complaining that their food didn’t come out right.”
To address the challenges and how to de-escalate a mask situation, Ryan recently co-authored with colleagues Myra Creighton, Aymara Ledezma, Todd Logsdon, Richard Meneghello and Catharine Morisset a five-step action plan on how a business can handle anti-mask guests.
Chief among those steps, Ryan said, is to “figure out what you want your front-line people to say. Literally, give them a script. And if they can’t coax the customer into compliance, find a designated manager or two to handle the cases.”
Restaurants are a public accommodation, so they are obligated to accommodate someone with a disability.
“The managers need to know if there is a medical reason the customer can’t wear a mask, because we certainly don’t want a claim under the Americans with Disabilities Act,” Ryan said.
As operators head into autumn, they should be aware of changing regulations on the municipal and state levels.
“What restaurateurs need to be prepared for is a changing of the guidelines,” Ryan said. “It’s a bit of a moving target on these mask regulations. It’s important to have a leader in your organization to be familiar or an expert on the requirements in your jurisdiction.”
Among the five steps that the Fisher Phillips team recommends to minimize the chances of a mask incident occurring in the workplace:
Step One: Private business decides
Private businesses can decide whether to allow customers or visitors onto a property if they are not wearing a mask. This is similar to the “no shirt, no shoes, no service” policy commonly posted in businesses.
Step Two: Be proactive with your mask policy
“Providing notice to customers, visitors and guests of your mask requirement prior to their arrival at your business can help reduce confusion and prevent an uncomfortable situation,” the lawyers said. Restaurants should provide notice of the policy when the customer makes a reservation, they said.
“A simple message to visitors and guests is best, not only confirming the reservation but highlighting your efforts to keep them and your staff safe by sharing your social distancing and masks requirements,” the attorneys said. “Posting notices on your public facing website, apps and social media platforms to notify visitors of your policy is recommended; you can also use emails or texts as additional communication tools.”
Signs should be posted in a prominent place at the establishment’s entrance and should include a statement that you have the right to refuse entry or service to anyone not complying with the requirement, particularly where required by local law. Many jurisdictions already require such signage.
“Consider having a staff member stationed at the entrance to remind guests of your requirement,” they said.
Step Three: Train your staff
“Your staff will be more likely to effectively enforce your requirement for masks if they understand why you have the requirement,” the lawyers said. “Train your employees on all health-and-safety measures you are implementing, including the face-mask requirement, and the reasons why you are implementing these measures. You should emphasize that these measures are for their protection as well as the protection of others that they interact with.”
The lawyers said that because the Occupational Safety and Health Administration and the Centers for Disease Control and Prevention have included masks in their recommendations and guidance, requiring masks for both employees and visitors could help avoid an OSHA General Duty Citation or similar challenge by local health and safety authorities.
“It is also crucial to train your visitor and customer-facing employees on how to politely request them to wear a mask,” the lawyers suggested. “For example, consider something like ‘Our policy is to require all visitors to wear a mask. Can I provide one to you?’ If the guest refuses, communicate a clear procedure to your employees, such as calling in a manager who can offer accommodation.”
Step Four: Reasonably accommodate visitors if they have a medical condition
“Visitors may refuse to wear a mask claiming they have an underlying health condition that prevents them from doing so,” the lawyers advised. “Although an individual may have a condition that makes it difficult to wear a mask (e.g., a pulmonary condition), it is highly unlikely the person is carrying a doctor’s note to that effect. Further, some state public health orders prohibit you from requiring medical documentation when this type of exemption is claimed. For these reasons, it is best not to require documentation from a visitor to support their request.”
They advised, rather than engaging in a discussion with the customer or guest about whether they are exempt from a mask rule, that manager consider whether they can offer an accommodation that would allow the customer to either access your business or your products/services.
“Some examples could include curbside service, online shopping for products or by letting them know they can enter your business at another time,” the team said. “You could also look into other alternatives that would not inhibit breathing, such as requiring your guests to wear a full clear face shield.”
Because of medical specifics, managers will want to be clear with legal counsel what general or specific situations may arise in the business.
“Social or political objections do not allow customers to refuse to wear masks,” the Fisher Phillips lawyers said. “However, rather than engage in confrontations, it is best to remind a visitor of your rule and offer alternatives for how to access your business.”
Step Five: Delicately deal with visitors who refuse to comply
“A clear policy and training is key,” they said. “Share the exact phrase you want your employees to use when dealing with an anti-mask guest, such as ‘If you will not wear the mask per our policy, I have been instructed to contact my manager who will need to discuss this with you.’ If a front-line employee is unable to coax the guests or customers to comply, a manager should be designated to handle the removal of a visitor.
“Do not ask or expect a non-management employee to handle removal of a non-compliant visitor, guest or customer,” they said. “Instead, encourage them to immediately involve a manager.
The lawyers said the first steps for a manager are to meet the guest in a private location, share the policy and, if applicable, the local/state ordinance.
“The manager should inform your visitor that they will be asked to leave if they continue to refuse to comply,” the lawyers said. “If the guest does not cooperate, your manager should escort the individual to the exit and inform them that they are welcome to return if they comply with the policy or when the need for a mask is gone.”
The team said managers should avoid raising voices and from physical contact.
“If the situation escalates, your manager should know to call on your own security personnel or local authorities in the same manner you would handle a trespassing situation,” they said. “Regardless of how the situation concludes, your manager should immediately document the incident in objective, non-emotional terms. They should be instructed to provide the documentation to key personnel (human resources, legal, etc.) as soon as possible and your business should retain the report in the event you are required to later demonstrate what happened.”
Ron Ruggless | Aug 17, 2020