Can you get sued for asking employees and customers to wear masks during COVID-19?

As states across the country begin to reopen during the coronavirus crisis, businesses may have to follow strict guidelines from their local governments in order to operate.

While business owners are excited to get back to work, they also want to ensure their customers and employees are safe. They don't want to foster an environment where COVID-19 can easily spread, so they may ask employees and customers to wear a mask.

If you're a business owner, you're likely wondering if requirements to put on face coverings will open you up to lawsuits.

Can you get sued?

The truth is that anyone can get sued for anything at any time. Still, the real question is whether or not the lawsuit will be successful, according to Tina Willis, owner of Tina Willis Law and a personal injury attorney.

"In 99% of cases, an employer cannot be successfully sued by customers or employees for requiring customers or employees to wear face masks," Willis says.

A lawsuit would likely not go through because if there was a theoretical argument that requiring employees and customers to wear a mask violated their constitutional rights, then only state actors could honor these rights. While some businesses are considered state actors, that determination can be complex.

However, if an employee or customer has a known medical limitation like emphysema and couldn't wear a mask, there may be a case. According to Willis, this person would have to ask if they could be at the business without a mask on due to a medical condition, be denied by their employer, and then suffer very serious injury or death as a probable result of wearing the mask.

There are other instances in which you could potentially get sued, according to Cynthia Flynn, ESQ, who practices employment law for Hackler Flynn & Associates, APC. For example, an employee may refuse to wear a mask because it interferes with the performance of the employee's job—it could fog up their glasses, and the employee would be unable to see while working. The mask could create a hazard in the workplace or get caught in the machinery as well. When something negative results from these situations—such as an injury—an employee could take legal action.

Protecting yourself from legal action

Before reopening your business, you'll need to come up with a plan in case employees and customers don't want to, or can't, wear a mask. Flynn suggests looking at the recommendations from the CDC, OSHA, EEOC, and your state and local governments.

"If any of these government agencies recommends or requires the use of masks, and you implement [the] same, your risk of a suit is low," she says.

Additionally, you need a written mask policy that your attorney has reviewed. The policy should be specific, implemented consistently across your business, and include the CDC, OSHA, EEOC, and state and local government policies. As recommendations from these agencies change, you need to update your policy.

It's also a good idea to include facts about COVID-19 and how wearing face coverings helps reduce the spread of the virus, how to wear a mask properly, when and where masks should be taken off or worn, where employees can obtain masks, the guidelines for the cleaning or disposing of masks, consequences for not complying with the policy and the employee signature, says Flynn.

If an employee cannot wear a mask, Flynn recommends having a dialogue with them to determine an accommodation, like a physically distant workspace or working remotely. If a customer can't wear one, a business should provide alternate options like home delivery, mail order, or curbside pickup.

For customers, the mask policy needs to be posted clearly on the store entrances and marketing materials (website, emails, social media) along with the consequences ("No mask, no entry"), says Flynn. Employees need to know this policy and be trained on how to educate customers.

If you follow state guidelines, are in line with employment laws, properly communicate with employees and customers, accommodate where needed, and work with an employment law attorney, you will be able to successfully reopen your business and start bringing profits in again in no time.