Can Restaurants Get Sued for Requiring Face Masks?

As the COVID-19 pandemic has progressed this year, restaurants have faced countless challenges in staying afloat, from losing staff to switching their service to takeout-only to trying to adjust to shifting mandates regarding reopening procedures. And on top of all that, restaurant staff at all levels have had to deal with angry, belittling customers who aren't keen on the new rules. Navigating a widespread health crisis seems particularly difficult in a culture where ‘the customer is always right.’

A few days ago, restaurant owner Katharine Nye Pellerito typed an honest and personal Facebook post about a recent incident in particular that left her reeling. "Last night was tough," she wrote. "We go through each day just trying our best. What are the new rules? What is right? What does the law expect? Who is going to yell at us for trying to do the right thing today? How do we apply guidelines without overstepping the law? […] Every day we try like our livelihoods depend on it—because they do." 

Pellerito, who runs Vito's Italian Kitchen and Corgans’ Publick House in Harrisonburg, Virginia, said that one of the reasons for her rough night was the behavior of Amanda Chase, a Virginia state senator and Republican gubernatorial candidate. Chase walked into Vito's and promptly turned her dinner run into a political situation: While she waited for her food, Chase allegedly threatened to sue the couple for asking her to wear a mask inside their restaurant—despite the fact that face coverings are required under a current state mandate.

In late May, Virginia governor Ralph Northam issued an order requiring everyone over the age of 10 to wear masks or face coverings indoors, although there are exceptions for those who have breathing problems; for those who cannot remove a mask without assistance from another person; for anyone who needs their mouth to be visible so they can communicate with the hearing impaired; and for those whose health conditions prohibit them from covering their faces. Many restaurants, including Vito's Italian Kitchen, do allow diners to remove their masks when they're seated, and when they're not interacting with any member of the staff. 

Chase allegedly presented a doctor's note, claimed that she had a medical condition that prevented her from wearing a face covering, and called her attorney while she stood unmasked in the Italian restaurant. Pellerito said that Vito's has been fully compliant with the Americans with Disabilities Act (ADA) and offers "reasonable accommodation" (in this case, curbside pickup) to those with protected medical conditions who cannot wear a mask. "Whether our policy is the right or wrong approach, the treatment we received and the behavior [Chase] demonstrated, making sure we knew who she was, was nothing short of appalling," Pellerito wrote. 

In a wordy response that she posted to her official 'Chase for Governor' Facebook page, Chase wrote that she was threatening a small business with a lawsuit because she was thinking of "those with disabilities."

"I could have just allowed them to deny me service and walk away but then I thought of all of those with underlying health conditions and those with disabilities who would not challenge the denial for service and be forced to walk away denied and humiliated," she typed, adding that no one should "feel demoralized, demonized, or forced to explain their medical condition to justify why they are not wearing a mask." (Whatever Chase's medical condition is, it didn't prevent her from wearing a mask when she got a haircut a few weeks ago.) 

Business owners may be left wondering how legitimate a threat like Chase's could be. Can a restaurant owner or, say, a supermarket manager actually get sued for requiring their customers to wear masks? As it turns out, the short answer is yes—but as anybody who has watched 15 minutes of syndicated afternoon television knows, Americans can (and often will) sue each other over literally anything, at any time. 

"Whether that person will win [their lawsuit] is a different question altogether. That’s because the law does not stop a business from having a mandatory mask policy," Eric Meyer, a management-side employment law partner at FisherBroyles, told VICE. "Indeed, a private business can set rules for patron attire as long as those rules do not discriminate based on race, religion, national origin, disability, or any other 'protected class' characteristic. The classic example is 'no shirt, no shoes, no service,' but you can't have a 'no yarmulkes' rule or ban Muslims from shopping." 

At least as of this writing, Chase's threat appears to have just been an unsolicited appetizer, but there have already been several face mask-related lawsuits, and we'll undoubtedly see more of them. 

In Pennsylvania, 35 people have sued the Pittsburgh-based Giant Eagle supermarket chain, arguing that its mask requirement is discriminatory to those with disabilities. Several plaintiffs have alleged that Giant Eagle staffers yelled at them or physically escorted them out of the store for refusing to wear a mask. (However, lead plaintiff Josiah Kostek was arrested for his belligerent behavior at the supermarket's Oil City location, and has been warned against trespassing at the store again.)  

“An overwhelming majority of customers and team members applaud Giant Eagle’s efforts to keep its stores as safe as possible during the covid-19 pandemic,” the supermarket wrote in its response to the lawsuit. “But a small minority object, and some have acted violently toward or sought to intimidate Giant Eagle’s team members who are merely doing their jobs.”

Giant Eagle also provides curbside pickup, grocery delivery, or personal shopping services for customers who cannot wear masks, which are all listed by the ADA as acceptable "alternative methods of service" in this scenario. "Bottom line is the person who is unable to wear a mask must not be denied the opportunity to obtain the goods and services of a business," the ADA writes. 

But, as Meyer explains, there are cases when even those "reasonable accommodations" don't have to be offered—and we're right in the middle of it. "There is an exception, and that's when an individual with a disability poses a direct threat to the health or safety of others," he says. "Science shows that someone who does not wear a face covering is far more likely to spread COVID-19. Thus, someone without a face covering would presumably pose a direct threat to others."

The potential health risk means that even Chase's doctor's note might not matter, legally speaking. "Documentation of a disability is therefore irrelevant. Even if someone has it, they still need to wear a face covering," he explains. "Title III of the ADA allows a business that is open to the public to impose legitimate safety rules. Presumably, a face-covering rule is one of them. But let's assume that a patron can't wear a mask: Can that person wear another face-covering instead, like a shield or bandana? If so, that seems a fair compromise." 

It's also important to note that any questionable "documentation" from suspect organizations like the Freedom to Breathe Agency is worthless. Both the ADA and the Department of Justice have issued warnings about the laminated cards or flyers that claim that the bearer doesn't have to wear a face mask. "Inaccurate flyers or other postings have been circulating on the web and via social media channels regarding the use of face masks and the Americans with Disabilities Act (ADA) due to the COVID-19 pandemic," the DOJ wrote. "[T]he Department did not issue and does not endorse them in any way. The public should not rely on the information contained in these postings."

The DOJ also explained that the ADA "does not provide a blanket exemption to people with disabilities," which is another argument frequently made by the mask-averse. "An individual whose disability does not interfere with wearing a face mask can be expected to wear one," a spokesperson for the Southeast ADA Center told VICE in an email. (For example, the woman who refused to wear a mask inside a California Starbucks said that her 'medical exemptions' included a uterine fibroid and an ovarian cyst—conditions which may impact her reproductive organs, but do not have any logical impact on her breathing.) 

All that said, the Northwest ADA Center does recommend that businesses need to have a "clear policy" of turning away any customer who doesn't comply with their face mask requirements, and they also need to be ready to explain why that person appeared to be a "direct threat" to the health of employees and other customers. (Like, did they present themselves as a sentient version of a COVID-19 symptom chart). 

So yes, you can totally sue that mom-and-pop restaurant or your local grocery store if they ask you to cover your face. Just know that it could be a long and expensive legal battle that will require you to prove that your ADA-recognized disability wasn't accommodated, and that they didn't provide you with an alternate method of ordering dinner or buying a bag of dog food.  

If that sounds like your personal experience, then it sounds like you might have a case. Otherwise, it’s probably much easier (and safer) for everyone to just wear a mask.