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November/December 2020

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MANY JURISDICTIONS require individuals to wear face coverings in public spaces, including in businesses, because of the COVID-19 pandemic. But some customers have been refusing to comply. How should a business respond to a customer refusing to wear a mask, and what should it do to minimize the chances of hostile incidents occurring? The Founding Fathers Did Not Include Protections for Customers Customers and employees have no constitutional free speech rights in a private business or workplace. The First Amendment to the U.S. Constitution protects an individual's right to free speech from infringement by the U.S. Government—not a private business. Similarly, most state constitutions do not create such rights. "Public Accommodations" Under Title III of Americans with Disabilities Act (ADA) Title III of the ADA governs the accommodation require- ments for guests with disabilities at facilities deemed places of "public accommodation." Generally, a public accommo- dation is an entity that provides services to the public, such as lodging, dining, shopping or medical services. Usually, this takes the form of allowing functional access to the pub- lic accommodation (i.e., ramps, elevators, sufficiently wide aisles and so on). Title III mandates that public accommodations cannot deny equal enjoyment of goods and services to individuals with disabilities. If a customer has a medical or disability- related condition that may require an accommodation, then the entity must consider the reasonable accommodation it can offer the customer. A customer must advise the business they need an accommodation if it is not obvious. While an employer can and should request appropriate medical docu- mentation when an employee requests a workplace accom- modation, that same right may be more restricted, and not best practice, with respect to accommodation requests from a customer under Title III. Accommodations can take many forms—but there are lim- its. A business need not accommodate someone if doing so 32 / NOVEMBER.DECEMBER.2020 USICERINKS.COM UNMASKED by H. Bernard Tisdale and Joshua R. Adams Handling Customers Who Refuse to Wear a Mask ILLUSTRATION: BIGSTOCK PHOTO

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