Can Retailers Fend Off Mask Lawsuits?

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Can Retailers Fend Off Mask Lawsuits?

By Thad Rueter - 07/16/2020
Can Retailers Fend Off Mask Lawsuits?
The mask lawsuits faced by Giant Eagle could signal what's to come as mask rage grows.

As food and other types of retailers increase the pressure on shoppers to wear masks, some consumers are striking back through lawsuits — a signal of what's coming during the pandemic.

Giant Eagle provides the best example of that so far. The food retailer reportedly has a no-exceptions mask policy. (Its home state of Pennsylvania mandated the wearing of masks on July 1 but included medical exemptions.) Now Giant Eagle is taking heat for that decision at a time when other major retailers such as Walmart, The Kroger Co., Costco and Best Buy have also set their own mask mandates, and as attorneys are starting to get involved.

Other retailers generally allow some exemptions for wearing masks. But for Giant Eagle, at least 30 consumers reportedly have sued the Pittsburgh-based food retail chain over that policy. The attorney who filed the suit told a local news source that the policy discriminates against disabled people, or people who may have medical conditions such as asthma that prevent them from wearing masks without risking other health problems.

Giant Eagle did not immediately respond to a request for comment from Retail Leader. A company spokesperson previously said that the claims have no merit, and that the retailer provides pickup, delivery and other services for shoppers who don’t want to wear masks.

MORE MASK MANDATES

Broadly speaking, it’s not only retailers pushing for mask mandates. Trade groups and the main union for U.S. food workers have also called for a nationwide mask mandate — calls that have increased as viral videos of mask rage continue to accumulate during a hot summer, and as coronavirus numbers set new records in multiple states. On July 15, for example, the United Food and Commercial Workers International Union (UFCW) said it “welcomed” the new Kroger all-store mask policy.

“Kroger's action to mandate masks for customers is long overdue and an important step that UFCW has been calling for since the beginning of the pandemic,” said UFCW International President Marc Perrone. “To help save lives, every retailer and grocery store across this nation must adopt a mask requirement, and enforcement must be done by trained professionals, not retail workers already stretched thin during this crisis.”

Even if all retailers adopt such policies, the potential for confusion, tension and even violence would still exist, given that not all states are requiring the wearing of masks in public. Also on July 15, for instance, Georgia Gov. Brian Kemp, a Republican, signed an executive order forbidding cities and counties from setting their own mask mandates. The order reportedly voids at least a dozen such local mask mandates, even as Georgia continues to experience record-high numbers of coronavirus cases.

CONSUMER PREFERENCES

As the pandemic keeps spreading, there is building evidence that most consumers favor wearing masks in public places, and are prepared to call other people or businesses out when they don't conform.

Oregon provides a recent example. According to the state’s Occupational Health and Safety Division, it has received at least 5,400 complaints since the start of its lockdown about potential workplace safety violations related to the pandemic. About one of every 12 complaints involved food retail stores, and included such issues as sick cashiers manning checkout lines and lack of social distancing, along with the failure of other people to wear face masks.

Not only that, but recent polls — some more solid than others — regularly find that most U.S. consumers favor wearing masks in public, along with mask mandates.  

LEGAL QUESTIONS

As for lawsuits targeting Giant Eagle, some legal observers said that the chain’s no-exceptions rule might eventually prove troublesome because of accessibility requirements set by the Americans with Disabilities Act (ADA).

“Public accommodations that elect to implement policies requiring all guests to wear face coverings without exception, particularly where a state or local order provides for medical exceptions, may want to thoroughly evaluate the ‘direct threat’ in order to be in the best position to defend against any ADA challenge,” noted a recent analysis from The National Law Review about the Giant Eagle situation.

As the article noted, “the ADA does not require a public accommodation to permit an individual to participate in, or benefit from, the goods or services if that individual poses a ‘direct threat’ to the health or safety of others.” The question for attorneys and courts is whether the coronavirus stands as such a “direct threat” under the law.

Even so, the analysis continues, there are other options for consumers and food retailers — options that play upon recent e-commerce gains and expanded programs. “Public accommodations that deny entry to customers who cannot wear face masks may want to consider offering other comparable services, such as online ordering, curbside pickup or special shopping hours, to excluded customers.” That reflects what Giant Eagle is offering no-mask shoppers.

Lawsuits of all types are coming fast during the pandemic — price-gouging accusations against grocery operations among them — and it’s reasonable to expect that the face mask issue will play out for a good long while, and involve food and other types of retailers in the coming court battles.

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