Mandating Mask Use as a Maryland Business

June 4, 2021
The Law Firm of J.W. Stafford

Maryland woman wearing mask

What Businesses Need to Know About Mask Policies in Maryland

More and more Americans are getting vaccinated against the coronavirus. The rate of new coronavirus cases is also dramatically falling. As a result, the U.S. Centers for Disease Control and Prevention (CDC) recently released new guidelines for fully vaccinated individuals.

Relying on these updates from the CDC, some states have updated their mask-wearing guidelines; Maryland is one of these states.

The problem with these relaxed rules is that they depend on individuals being honest about their vaccination status. Therefore, many businesses may still choose to enforce mask use among their customers and employees.

Can they do that? And if so, what are the practical implications of having such a policy? In this month’s blog post, we’ll answer these two questions. And if you have any other related issues you need addressed, feel free to reach out to one of our experienced Maryland employment lawyers from the Law Firm of J.W. Stafford.

New Mask-Wearing Guidelines

According to the CDC’s May 16, 2021 updated guidelines, subject to a few caveats, individuals who are fully vaccinated can resume pre-coronavirus activities even without wearing a mask or social distancing. But if there are any local, state or federal rules or laws that declare otherwise, individuals should comply with those requirements. That includes private business and employer policies.

Another important caveat to the CDC’s recommendations is that a fully vaccinated individual is someone who received his or her final injection of the coronavirus vaccine at least two weeks earlier.

Finally, masks are still required on all forms of public transportation, whether traveling into, out of or within the United States.

In Maryland, Governor Larry Hogan issued an order that declared, effective May 15, 2021, that Maryland was adopting the above CDC guidelines. The order also stated that masks would still be required on school buses, public transportation, health care facilities and inside schools.

Can Maryland Businesses Still Require Employees to Wear Masks?

Yes. Despite Governor Hogan’s order, Maryland businesses and employment settings may still enforce their own mask-wearing rules or policies.

Employers have, as a general rule, a large amount of discretion to identify workplace hazards and decide how they want to protect their employees. So if a business believes that there’s a risk of customers lying about their vaccination status to avoid wearing masks, the business can take reasonable steps to protect its employees. If this means requiring employees to wear personal protective equipment (PPE), such as masks, the business will typically have the right to enforce such a mandate.

However, the employer may need to offer a reasonable accommodation to an employee who won’t wear a mask due to an ADA-recognized disability. If the employer is required to provide a reasonable accommodation, it must be an accommodation that does not impose an undue hardship on the employer.

An accommodation is an undue hardship if it places a significant expense or difficulty on the employer. What constitutes a significant expense or difficulty will depend on the resources available to the employer.

For instance, a massive multi-national corporation with hundreds of thousands of employees will have greater ability to accommodate a worker’s disability compared to a small business with just 20 employees.

Can Maryland Businesses Still Require Customers to Wear Masks?

Yes. Privates businesses open to the public must not impose discriminatory conditions for entry. So a local ice cream shop couldn’t refuse service to a customer because of the customer’s race. But if the business wants to impose a non-discriminatory policy on its customers like wearing a mask, it can do so. This is no different than an establishments placing a “no shirt, no shoes, no service” posting on their door.

If a customer refuses to abide by a business’ mask-wearing policies, they can be asked to leave. Then if they refuse to leave, they may be considered trespassers and law enforcement may be contacted.

Practical Considerations for Maryland Businesses Concerning Masks

Despite Maryland law giving business establishments the ability to require its employees or customers to wear masks if they are not vaccinated, there are practical considerations to account for.

First, people will lie about being vaccinated. Perhaps they’ll claim they’re vaccinated when they’re really not. Or maybe two weeks haven’t passed since their final coronavirus vaccine shot.

Second, asking for proof of vaccination can create problems. Asking an employee to prove they’re fully vaccinated against the coronavirus does not automatically invoke the Americans with Disabilities Act of 1990 (ADA). However, this request could potentially lead to a disability-related inquiry of an employee, which might activate the employee’s protections under the ADA.

Asking customers to provide proof can be a cumbersome process. It may also place additional duties on the business and its employees. Every time a new customer enters the store and is not wearing a mask, someone would need to stop what they were doing to see proof of vaccination. Alternatively, the business would need to hire someone for the sole purpose of screening incoming customers.

Even if the added responsibilities were minimal, there’s the increased risk of a confrontation between an employee and customer. One of the last things a business wants is to see a viral video of a confrontation between its customer and employee.

Third, even if customers are completely honest about their vaccination status, there could eventually be an unvaccinated customer without a mask who points to another mask-less customer and says the inevitable, “Well, they’re not wearing a mask, but you allowed them into your store!” Then an employee must explain the mask policy and how only those not fully vaccinated need to wear masks. In a best case scenario, the employee wastes time. In a worst case scenario, this is another opportunity for a confrontation between a worker and customer.

Fourth, if an employee is successful in convincing a customer to wear a mask, it’s almost assuredly going to make the customer upset. No business owner wants an unhappy customer, regardless of the reason why they’re unhappy.

Have More Questions about the Coronavirus and How It Affects Your Maryland Business?

If you have additional Covid-related concerns about what you can ask of your employees, such as asking them to get vaccinated, we have a webinar that will provide some basic guidance on what you can ask and what your employees can expect from you.

If you have any questions, feel free to contact the Law Firm of J.W. Stafford to speak to a Maryland employment attorney who can listen to your specific situation and give you tailored advice on your options.