Face Masks Must Be Worn

July 13, 2020

Face Masks Must Be Worn

That is the rule governing New York State under Executive Order 202.17. This directive, dated 4/15/2020 says “anyone over the age of two will be required to cover their nose and mouth with a mask or cloth face-covering when in a public space or when unable to maintain a social distance.” Only those under 2 years of age or those who cannot medically tolerate a face covering are exempt.

According to reports, wearing masks gives us up to a 65% - 70% protection against becoming infected with COVID 19. It seems a small price to pay to protect ourselves, our families and others we may come in contact with.

So why are we seeing so much negativity on the news regarding wearing masks?

Aren’t they meant to help protect us from becoming infected and spreading the disease to one another?

News article after news article shows people refusing to wear a mask. “It is my right to choose whether to wear a mask.” “It is unlawful to require me to wear a mask.” However, this is not true. Under emergency powers, government officials can enact laws to protect public health. That is what Executive Order 202.17 does. It protects us, as best we can, from spreading the coronavirus.

In June, the Executive Order was amended to include protections for businesses. It states “Business operators and building owners, and those authorized on their behalf shall have the discretion to ensure compliance with the directive in Executive Order 202.17 (requiring any individual over age two, and able to medically tolerate a face-covering, be required to cover their nose and mouth with a mask or cloth face-covering when in a public place), including the discretion to deny admittance to individuals who fail to comply with the directive..”

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For farmers markets, this means the ball is in your court. You have the right and perhaps, the moral duty, to require market goers to wear a face mask. You are protecting your staff, your farmers and vendors, as well as all other market customers. You also have the legal right to refuse to allow someone into the market if they do not wear a mask. Only you can decide how comfortable you are in enforcing that requirement. It could mean confrontations, it could mean physical altercations, and it could also mean you ostracize a few customers. You could call for police intervention, you could have your own security there to help you enforce it. But, ultimately, it is up to your discretion. You know your customer base, you know your abilities and limitations.

Individual farmers and vendors have also asked about their rights and responsibilities. They do have the responsibility to protect their customers and be respectful by wearing a mask themselves. They also have the right to refuse to serve customers who approach their tables without a mask. They need to protect themselves, their customers, their families and their co-workers. By only dealing with mask wearing customers, they are better able to protect everyone. Again, this is up to their discretion. Just as long as they know that they have the right to require masks be worn.

Let’s look at the implications of allowing non-mask wearing customers in your market. First, you are risking the spread of infection through your market. When someone gets sick and it is publicized that they were in the market without a mask, what will public reaction be? Because of contact tracing, your customers will be required to isolate themselves for up to 14 days. That’s two weeks with a significant drop in your customer base.

Beyond that, what does this tell your potential customers and the community at large? It says, to those who are being cautious about their behaviors and contacts, you don’t care about their health and safety. Perhaps your market isn’t a safe place for them to shop. Certainly not a safe place for elderly, those with underlying health issues and not a place to take the family. Now you have lost customers, perhaps permanently.

Can you be held liable
if you do not uphold
the mask requirement?

So how do we know who is medically exempt from wearing a mask?

The short answer is that we don’t. Contrary to a fraudulent card being circulated, this is not an issue covered by the American Disabilities Act. So unless someone comes to you with a letter from their doctor, on the doctor’s letterhead, you don’t know. Nor can you ask for such a document. That would be against privacy laws.

However, if somebody tells you they have a medical exemption under the ADA for legitimately foregoing a mask, markets should be aware of ADA Title III-3.8000 Direct Threat. The Federal government has declared that COVID-19 poses a “direct threat” to the community. Under Direct Threat, “a public accommodation may exclude an individual with a disability from participation in an activity, if that individual’s participation would result in a direct threat to the health or safety of others.” Public accommodations must determine there is significant risk to others — which the Federal government has done — that cannot be eliminated or reduced to an acceptable level, based on current medical evidence.

When someone tells you that they are medically exempt from wearing a mask, offer alternative shopping options for that person. Let’s face it, if they have a medical issue, they shouldn’t be out in the public anyway. Can you offer some level of online shopping or preordering with a curbside pickup? Can you find a volunteer that can shop on that person’s behalf? Offering them alternative shopping options so that you can still enforce mask requirements may help to diffuse a difficult situation and prevent escalation.

Ultimately, the choice to enforce the requirements for wearing a mask is your decision. But being armed with the knowledge of your rights and responsibilities and knowing potential implications can help you to make the right decision for you, your farmers and vendors, your customers and the overall safety of your market.

LINKS: ADA Title III-3.8000 Direct Threat