Pub. 8 2019-2020 Issue 4

PUB YR 8 2019-2020 | ISSUE 4 19 because both OSHA and the CDC have includedmasks in their respective recommendations and guidance, requiring masks for both employees and visitors could help avoid an OSHA General Duty Citation or similar challenge by local health and safety authorities. It is also crucial to train your visitor and customer-facing employees on how to politely request them to wear a mask. For example, consider something like, “Our policy is to require all visitors to wear a mask. May I provide one to you?” If the guest refuses, communicate a clear procedure to your employees for how to address this unfortunate situation (Step Five provides suggestions). Step Four: Reasonably Accommodate Visitors If They Have a Medical Condition Visitors may refuse to wear a mask by claiming they have an underlying health condition that prevents them from doing so. Although an individual may have a condition that makes it difficult to wear a mask (e.g., a pulmonary condition), it is highly unlikely the person is carrying a doctor’s note to that effect. Further, some state public health orders prohibit you from requiring medical documentation when this type of exemption is claimed. For these reasons, it is best not to require documentation from a visitor to support their request. Even though you may have a policy or are subject to a state-ordered obligation to require facemasks, you may also have an obligation to accommodate the individual if doing so is possible. Instead of engaging in discussion with the customer or guest about whether they are exempt from your rule, consider whether you can offer an accommodation that would allow them to either access your business or your products/ services. Some examples could include curbside service, online shopping for products, or by letting them know they can enter your business at another time. You could also look into other alternatives that would not inhibit breathing, such as requiring your guests to wear a full, clear face shield. However, it is important to recognize that accommodation recommen- dations are based on highly fact-specific analyses that need to take into account the medical condition of the guest, the type of business you are conducting, and any specific state or local laws that present additional requirements (or punish offending businesses with stiffmonetary penal- ties). You will want to coordinate with legal counsel for clarity regarding general or specific situations that may arise at your place of business. What if a visitor doesn't say they have amedical issue but instead presents a card or literature indicating that masks are unsafe? Social or political objections do not allow customers to refuse to wear masks. However, rather than engage in confrontations, it is best to remind a visitor of your rule and offer alternatives for how to access your business. Step Five: Delicately Deal With Visitors Who Refuse to Comply If you've taken all of the steps above and you still have a visitor who refuses to comply, what do you do? A clear policy and training are key. Share the exact phrase you want your employees to use when dealing with an anti-mask guest, such as, “If you will not wear the mask per our policy, I have been instructed to contact my manager who will need to discuss this with you.” If your frontline employee is unable to coax your guests or customers to comply, you should have a designatedmanager to handle the removal of a visitor. Do not ask or expect a non-management employee to handle the removal of a noncompliant visitor, guest, or customer. Instead, encourage them to immediately involve a manager. That manager will need guidance on what your business wants to do if a guest or visitor becomes belligerent. The first step in such an unfortunate situation should be for the manager to meet the guest in a private location, share your policy, and, if applicable, the local/state ordinance or any acknowledgment the guest may have signed upon arrival or at the time of reservation. The manager should inform your visitor that they will be asked to leave if they continue to refuse to comply. If the guest does not cooperate, your manager should escort the individual to the exit and inform them that they are welcome to return if they comply with the policy or when the need for a mask is gone. Where applicable, your manager should offer to reschedule an appointment or reservation. It is always wise for your manager to avoid raising their voice and to refrain from physical contact. If the situation escalates, your manager should know to call on your own security personnel or local authorities in the samemanner youwould handle a trespassing situation. Regardless of how the situation concludes, your manager should immediately document the incident in objective, non-emotional terms. They should be instructed to provide the documentation to key personnel (human resources, legal, etc.) as soon as possible, and your business should retain the report in the event you are required to later demonstrate what happened. Conclusion Fisher Phillips will continue to monitor the rapidly developing COVID- 19 situation and provide updates as appropriate. Make sure you are subscribed to Fisher Phillips’ Alert System to get the most up-to-date information. For further information, contact your Fisher Phillips attorney or any member of our Post-Pandemic Strategy Group Roster. You can also review our FP BEYOND THE CURVE: Post-Pandemic Back-To-Business FAQs For Employers and our FP Resource Center For Employers. The manager should inform your visitor that they will be asked to leave if they continue to refuse to comply. If the guest does not cooperate, your manager should escort the individual to the exit and inform them that they are welcome to return if they comply with the policy or when the need for a mask is gone.