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Law360 (August 14, 2020, 2:59 PM EDT) -- As restaurants, retailers and other public-facing businesses continue to ramp up in-person operations, they're grappling with how to make sure sometimes-reluctant customers wear masks without exposing their workers to verbal abuse or even physical violence.
If they don't make customers wear masks, employers risk being fined by their states and cities or facing workplace safety complaints when employees serve maskless patrons. But enforcing their policies against mask skeptics or customers whose health conditions preclude covering their faces can put workers at risk, as recent news reports and viral videos show.
"We are routinely running into issues involving how to balance the need to protect the health and safety of your employees [and] the health and safety of your other customers and guests against individuals who are trying to refuse to wear masks," said Joshua Stein, an Epstein Becker Green attorney who advises retailers, hospitality companies and others on disability law.
Here are five tips for getting customers to mask up while minimizing risks to employees.
Make Your Mask Policy Loud and Clear
When it comes to enforcing mask policies, the first pillar is simple, attorneys say: Make sure your customers know the rules.
"The first thing that clients have been really focused on is messaging, and making sure messaging is [in] advance, it is clear, and it is repetitive," Stein said. "Underscore the idea that you are expected to be wearing a mask to enter the store."
For example, many retailers have pop-ups on their websites alerting customers to their safety policies, such as physical distancing protocols or masking rules, Stein said.
Employers should also make sure to erect signs outside to get their message across before customers enter the facility, said Terri Solomon, who co-chairs the workplace violence prevention practice at employment firm Littler Mendelson PC. It can also be helpful to post a worker near the door to alert patrons to the masking policy, she said.
"I always advise, if somebody is at the door, having a stack of paper masks and saying, 'Excuse me, madam, here's a mask for your convenience,'" Solomon said.
Doling out masks has the added bonus of serving as free marketing while engendering customer goodwill, Stein said.
"It's a branding opportunity. You have people who are creating custom masks," Stein said. "Having branded, high-end retail masks given to you by the store ... people may be like, 'Oh, that's cool.'"
Have Designated Enforcers
In many cases, a simple reminder is all it takes to enforce a mask policy. But sometimes customers refuse to comply, necessitating a more direct approach. In those circumstances, employers need to make sure they deploy the right people for the job.
Solomon said she cautions clients against delegating mask policy enforcement to rank-and-file workers.
"The advice that we're giving is that you do not put your employees — and certainly not nonmanagerial employees — in the position of enforcing a mask requirement, any more than you would put them in the position of enforcing a no-gun policy," Solomon said.
Stein also said he advises clients against putting enforcement in the hands of their front-line workers. Rather than deploying greeters or cashiers as conflict managers, employers may consider designating a well-trained manager to handle unruly customers. They may also involve security — though employers should seek individuals with a mix of brawn and people skills.
"It might not be a bouncer type at the door, but someone who is still imposing enough or loud and strong enough," Stein said. "They can be that front line, but [employers should] provide those individuals with much greater training."
Try to Defuse Conflicts Before They Happen
Some customers may refuse masks on principle. Others may claim exemption under local mandates' carveouts for people with disabilities. And others may simply not have their mask handy.
Regardless of a customer's reasons for refusing to wear a mask, employers can minimize the risks of a confrontation by giving the customer an out.
"If the person continues to kind of raise the issue ... then you should be prepared to discuss alternative ways to let that person enjoy your services," Stein said.
For instance, many businesses implemented car-side services at the height of the pandemic, and can bring goods or food to unruly customers rather than admitting them to the store, Stein said. Others are giving out coupons for free shipping for online orders.
"Get rid of excuses," he said.
Get Encounters On Film
The last few months have seen numerous videos of confrontations in grocery stores, restaurants and other businesses go viral. Because these videos are susceptible to manipulation, businesses may need footage of their own to set the record straight.
"It's the best practice if it blows up and you can't control it, to have that document on hand, so if [customers] go out and file a complaint with corporate or a lawsuit, you've got the information ... to protect yourself," Stein said.
In some recent cases, customers have claimed they were mistreated and released edited video to back up their stories, he said. Employers can spare themselves legal liability and public embarrassment by having videos of their own.
"It isn't the worst idea for someone at the store to take out their phone and film," Stein said.
Move Up the Response Chain
In many cases, reminding a customer to wear a mask or offering them an alternative does the trick. But when these measures fail, employers need to have a plan.
Jeffer Mangels Butler & Mitchell LLP employment group chair Marta Fernandez said she recommends that employers take a multistep approach to enforcing mask policies, starting with front-line workers. If a customer refuses to put on a mask at initial contact, that worker should call a manager.
"If the manager gets a further negative response, then you call security," Fernandez said. "Whatever the circumstances applicable to a particular employer, we recommend that there be steps in place, in writing, on de-escalation tactics."
If customers refuse to comply with directions, employers should instruct their workers to back off and call law enforcement, Solomon said.
"An employer should not put its employees in the position of risking their own safety in order to enforce a policy or even a law," Solomon said. "Employees should be instructed that they should alert their manager if the situation is escalating, and if it's possible to do so safely, to dial 911."
--Editing by Kelly Duncan and Marygrace Murphy.
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