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It’s on you to Require Your Customers to Wear a Mask!

July 22, 2020

Michigan
In Michigan and Illinois, masks are required to be worn in indoor public spaces. Michigan Executive Orders 2020-147 and 2020-153 require businesses to refuse entry to people not wearing a mask. Businesses are also required to post signs at entrances instructing customers of their legal obligation to wear a mask when indoors. A business’s operating license or liquor license may be suspended for failure to follow the order and a willful violation of the order is a misdemeanor and subject to a $500 fine.

Many are concerned that this puts retail and restaurant employees in potentially dangerous situations when forced to confront unmasked customers. Some retailers are hiring security guards, but increasing payroll at this time is not a viable solution for most. Executive Order 2020-153 says that a business may not assume that someone who enters without a face mask falls into one of the exceptions for not being required to wear a face mask, however, a business can rely on a customer’s verbal representation that they fall under one of the exceptions, thus taking it out of the business’s hands to determine the validity of the exception, such as whether or not a customer can medically tolerate wearing a mask. The police have said that they do not have the manpower to enforce these Orders, however, they will step in if a customer refuses to leave. 

Illinois
In Illinois, by Executive Order of Governor Pritzker (originally Executive Order 2020-32 and reiterated in Executive Order 2020-43), masks have been required indoors since May 1st if customers cannot maintain a social distance of six feet apart. Businesses are required to enforce this mandate and, in the City of Chicago, the Department of Business Affairs and Consumer Protection will issue citations with fines of up to $10,000 for violations of social distancing, capacity limit and face covering mandates, Mayor Lightfoot’s office stated recently. The Illinois Department of Public Health website (https://www.dph.illinois.gov/covid19/faq-face-coverings-business) includes the following helpful information for businesses concerning the Executive Order:

  • A face covering is a mask or cloth face covering that covers one’s nose and mouth. The face covering should allow for breathing without restriction. There is no requirement to wear a hospital grade mask or other specific type or brand of face covering. 
  • Businesses may refuse service to persons unable to comply with the requirement to wear a face covering, and if there is a medical reason for not wearing the face covering, businesses are required to provide a reasonable accommodation as long as doing so does not cause an undue hardship to the business. Businesses are encouraged to inform customers there are exceptions to the requirement that all individuals must wear a mask.
  • No proof of a medical condition or disability is required in order for a customer to successfully claim an exemption to the mask mandate. It is enough that the customer communicates that a medical condition or disability exists that prevents them from safely wearing a face covering.
  • Examples of reasonable accommodations for customers unable to wear masks for medical reasons:
    • Provide the individual an opportunity to order by telephone or online and provide pickup at a special register, curbside, or deliver to the individual’s home.
    • Arrange for an employee to bring the items for purchase to the individual and allow payment at a special register, over the phone, or at the front of the store.
    • Provide the individual with the opportunity to leave a list of items with the business and pick them up later or arrange for delivery to the individual’s home.
    • Provide the individual with an opportunity to shop during off-peak times where social distancing can be maintained. 
  • If a business refuses to consider a customer’s request for a reasonable accommodation, the IDPH website Q & A advises the customer to report the incident to the Illinois Department of Human Rights. In addition all businesses must treat customers equally under Article 5 of the Illinois Human Rights Act, 775 ILCS 5.
  • A business may request a customer to temporarily remove his or her face covering for the purpose of checking identification, for instance if the customer is purchasing alcohol, cannabis, or certain medicine. 

The face covering Executive Orders may be enforced by State and local law enforcement pursuant to, inter alia, Section 7, Section 15, Section 18, and Section 19 of the Illinois Emergency Management Agency Act, 20 ILCS 3305.

In addition, under the Illinois Whistleblower Act, 740 ILCS 174, businesses are prohibited from retaliating against an employee for disclosing information that is reasonably believed to disclose a violation of the face covering Executive Orders by the business/employer.