As all restaurants are aware, the FDA and CDC highly recommends that everyone wear a mask in public spaces. In the following states, it is written into law that masks must be worn in public spaces: California, Connecticut, Delaware, District of Columbia, Hawaii, Illinois, Kentucky, Maine, Maryland, Massachusetts, Michigan, New Jersey, New Mexico, New York, Pennsylvania, Rhode Island. Despite all of this, many people refuse to wear masks. The psychology behind why people refuse to wear masks is an entirely different issue and well explained in this CNN article. However, what do you or your employees do when a guest approaches the store not wearing a mask, and argues about it?

“I’ll Sue under the Disability Act” Back In April, a flyer started spreading through social media, especially Facebook, promoting a “loophole” that would allow those who do not want to wear masks to do so legally. The flyer argued that the American Disabilities Act (ADA) would protect those who cannot wear masks due to medical situations from state or business mask regulations. Then, the Health Insurance Portability and Accountability Act (HIPAA) would protect the individual from having to disclose their medical history, therefore securing people’s “right” to not wear masks and lie their way through it.

The ADA does protect those who have medical reasons for not wearing masks; many people with severe respiratory conditions cannot wear masks as they limit their breathing. Some people with autism cannot handle the sensory overload, and other conditions exist as well. However, the ADA does not protect those who pretend to be disabled. Which leads to the flyer; it argues that under HIPPA, your employees cannot ask guests to disclose medical information. However, reading the law proves this is also a false claim.

The HIPPA laws protect individuals from disclosing medical information from three types of entities: health plans, health care clearinghouses, and health care providers. Restaurants and their employees are not part of healthcare; therefore, you can ask customers about their medical reasons if they claim the ADA exception without fear of justified legal issues. Asking guests about their medical history is considered rude and socially improper, but when facing a pandemic, exceptions must be made.

How do we Respond?
We suggest you ask your guests the following if they state they cannot wear a mask due to medical reasons:

“Thank you for letting me know. Could you let me know a little bit more about your condition so we can serve you safely today?”

If the guest is patient and is willing to compromise for the situation, work with them. Ask them to order through the hungr app, or go the extra mile with a pre-set-up table that is socially distanced from others or outside of the store.

If the individual truly cannot wear a mask due to medical reasons, and your employees are calmly handling the situation, they will want to work with your store. If the guest responds citing the HIPPA law, and is aggressive, it is likely they are not telling the truth. In states such as New Jersey, Pennsylvania, and Michigan, you will be legally protected for refusing service for not wearing a mask. In other states, these protections are not written into any emergency orders at the time of this blog.

If you decide to refuse that guest service, say something along the lines of: “If a guest is unable to wear a mask, and they refuse the accommodations provided, we have the right to refuse service. I am going to have to ask you to leave unless you are willing to compromise for the safety of yourself and others.”

The most important advice to remember is to value your employees over profits. Customers come and go, but your employees are an integral part of your business. Especially during the labor shortage, you have to value your workers more as people with their own virus fears than any other time. Stand your ground as a store or business with whatever policy you decide upon.



Source: https://www.snopes.com/fact-check/able-bodied-ada-mask-loophole

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