That Un-Masked Man: Can a Business Ask a Customer Who Refuses to Wear a Mask Because of a Disability to Leave?In the COVID-19 era, many employers and businesses are wrestling with unprecedented issues. You can add one more to the list: Can you have your employees ask a customer who refuses to wear a mask because of a claimed disability to leave?

Under the Americans with Disabilities Act (ADA), a place of public accommodation – like many businesses that are open to the public – cannot discriminate against a customer or visitor on the basis of the individual’s disability in the access and enjoyment of the business. Generally, this means that you have to make sure that disabled patrons can access your business by providing physical and sometimes digital access. If the analysis ended there, this general rule would arguably prohibit businesses from denying access to a disabled individual who could not wear a mask because of that disability.

The Direct Threat Exception

However, there is an exception to this general rule. If a disabled individual poses a “direct threat to the health and safety of others,” then the ADA does not require the business (or other place of public accommodation) to allow access to that individual.

So, what constitutes a “direct threat to the health and safety of others”? As of the time of this writing, the Equal Employment Opportunity Commission (EEOC) has taken the position that COVID-19 does. If COVID-19 is a direct threat to the health and safety of others, this means that you can enforce your mandatory mask policy and could likely deny service or admission to someone who refuses to wear a mask, even if the refusal is based on a disability. However, you may want to consider ways to deliver services in a way that these unmasked patrons can still buy your goods and services.

In the employment context, the EEOC guidance states that an employer can require an employee to wear a mask, unless the employee has a disability and needs an accommodation related to wearing a mask. In that case, like with any other accommodation request, the employer and employee must enter into an interactive process to try to find a reasonable accommodation.

Given the ever-changing nature of our COVID-19 world, this guidance could change. Keep an eye on both the EEOC and the CDC guidance.

Enforcing Your Mask Requirement

Before denying service or admission to the unmasked customer, you should consider alternative ways to accommodate him or her without subjecting other guests and staff to undue risk. One potential way is for the individual to wear a face shield instead of a mask. You may want to post on your website or social media feeds a notice that customers must wear a mask, but also state that if a mask cannot be worn for health-related reasons the guest should bring a face shield. While current guidance is that face shields may not be as effective as face masks, they would likely be better than no face covering at all. A business could also provide face shields to guests, but that may be cost prohibitive.

When a customer states that he or she cannot wear a mask because of a disability, you should not ask questions about the specifics or require the customer to provide “proof” of the disability. Accept at face value the customer’s assertion that a disability prevents him or her from wearing a mask (because the customer is always right), and then enter into an interactive process to look for ways to try to accommodate it, if possible. You may or may not find a solution but you should at least try.

Requiring customers to wear masks was something no business owner was contemplating when ringing in the new year. But hey, 2020.

Sixth Circuit Scrubs Attempted Snub of Arbitration of Grubhub Paystub HubbubThere have been many examples of the tension between the “gig economy” and traditional labor laws. Most of the companies like Uber or Grubhub choose to classify their drivers as independent contractors instead of employees, which eliminates obligations like overtime under the Fair Labor Standards Act. The Sixth Circuit this week dealt with such a dispute, but at a fundamental level: can an independent contractor who signs an arbitration agreement be forced to arbitrate instead of litigating in court? Because of the way the drivers chose to argue their case, in Carmen Wallace v. Grubhub, the Sixth Circuit held that they were bound by the arbitration agreement.

Who Is Outside of the Federal Arbitration Act?

The Federal Arbitration Act is used to enforce arbitration clauses in employment agreements. The act specifically exempts seamen and railroad employees from arbitration clauses. However, the law also contains an exemption for “any other class of workers engaged in foreign or interstate commerce.” At first blush, that exemption appears to be fairly broad. In the past, some workers have argued that this would cover any contracts within Congress’s commerce power — which would essentially mean ALL employment contracts. The Supreme Court, however, was not willing to let the exemption swallow the rule and instead found that because the other two exemptions were railroad workers and seamen, the meaning of the exemption was to cover workers whose job description included actually moving goods across state lines.

How Did the Grubhub Drivers Meet the Exemption?

Grubhub drivers, although considered independent contractors instead of employees, all signed a “Delivery Service Provider Agreement” that included an arbitration clause for employment disputes. Drivers in several cities filed a lawsuit claiming that Grubhub didn’t pay proper overtime. Grubhub moved to compel arbitration under the provider agreements, and the drivers objected, arguing they were exempt from the FAA’s arbitration enforcement provisions because they were engaged in interstate commerce.

The Grubhub drivers didn’t try to show that they were engaged in actually moving things across interstate lines. Instead, they argued that the food items that they moved locally, came across state lines (or maybe even international lines) before they got to the drivers. They didn’t focus on what their drivers actually did, but instead on where the goods they delivered had been.

The Sixth Circuit didn’t buy that distinction. They said that the exemption should only apply to actual transportation workers that crossed the state lines. If you applied the exemption like the drivers wanted, a dry cleaner who pressed shirts made in Taiwan could be classified as being involved in interstate commerce and meet the exemption. The Sixth Circuit noted that without a narrowing of the exemption, it would not be a controlled and defined exemption. Therefore, the Sixth Circuit found that the Grubhub drivers’ claims were subject to arbitration.

Where Does This Leave Us?

Unless you run a railroad, shipping company or interstate trucking company, it is pretty likely that you can have enforceable arbitration agreements with your workers. This decision is evidence that most federal courts strongly favor arbitration under the FAA. However, the arguments of the Grubhub drivers do show how creative employees may get to try to avoid an arbitration clause. Employers should double check their job descriptions to make sure that they accurately describe any interstate activity or lack thereof.

The EEOC Extended EEO-1 Reporting Deadline Until 2021 – But Don’t Stop PreparingThe EEO-1 report — who doesn’t love preparing that? With recent changes it has only gotten more fun. Many employers waited for the EEO-1 reporting portal to open for the March 31, 2020 reporting deadline, but it never did. Now some employers are wondering when they should report. Remember that EEO-1 forms are supposed to be due every year, and you must file if you are:

  • An employer with 100 or more employees, and/or
  • A federal government contractor who has 50 or more employees and contracts of $50,000 or more.

What Happened?

On May 7, 2020, the EEOC announced its decision to delay EEO-1 filing for calendar years 2019 and 2020 until March 2021 because of COVID-19. The EEOC recognizes that the challenges faced by employers during COVID-19 could impact their ability to not only collect the required data, but also to provide “accurate, valid and reliable data in a timely manner.”

Update on What Is Required

As mentioned in our last post on this issue, the burden related to EEO-1 filing significantly increased when the EEOC started requiring employee pay data beginning with calendar years 2017 and 2018. Employers first filed that pay data in September 2019.

In Fall 2019, the EEOC announced that it may establish a less burdensome pay data reporting requirement. That issue is still unsettled. The EEOC has decided to take a close look at the pay data collected for calendar years 2017 and 2018 to determine “the future of pay data collection.”

What Should Employers Do?

Do not wait to start collecting the required data. The EEOC recommended that you start preparing now to submit data in 2021. Although it is unclear what the report will look like, it is still possible that some form of pay data reporting could be required – by the EEOC or by court order. So, employers should start thinking about the best way to collect pay data. Assuming that you will be required to submit it at some point, you may want to get with your lawyer (so any review is privileged) and think about doing a pay audit so you can address any perceived inequities now.