Published
July 15, 2020
Masks have proven to be effective in minimizing the spread of COVID-19, and yet the recent debate and politicization of mask-wearing continue to threaten the reopening of our economy. In an attempt to curb a recent spike in cases, many governors have issued orders requiring masks to be worn in public. As is the case with many corona-related issues; however, guidance related to mask-wearing consists of a patchwork of rules across counties and states, which undermines consumer confidence and thus slows the recovery of economic activity.
Current State of Mask Requirements
Currently, approximately half of states require masks to be worn outside of the home, in public settings statewide. Most states define acceptable masks as “cloth face coverings.” Many ask that N95 and surgical masks be reserved for healthcare workers and first responders. Most states specify that a mask should “fit snuggly around your mouth and nose.” Most states don’t require a mask while when one is outside and able to consistently maintain a social distance of six feet with non-members of their family unit.
While common exemptions include medical conditions or disabilities that impeded breathing would put the person at risk, there are sometimes significant variations in the ages of children not expected to wear a mask. All say any child under two years of age should be exempt (consistent with CDC guidance), while some have designated anywhere from 9 to 12 years of age.
In some states, you can face a fine (some up to $5,000) or imprisonment for not complying with the order. Very few states give metric-driven guidance on a mask requirement. For example, Texas specifies counties with more than 20 coronavirus cases to wear a face covering.
Issues Stemming from Guidance
This variance in rules not only makes doing business across states difficult but has led to several other issues for businesses across the country.
One such issue is with enforcement. While state or local governments are making decisions, the burden of enforcing compliance with the rules has unfairly fallen on businesses. Many retailers have reported confrontations stemming from customers who refuse to wear masks. Retail and restaurant workers are not law enforcement officials and often lack the necessary authority and training to deal with the level of conflicts surrounding mask compliance.
Another consequence stemming from the mask issue is an increase in litigation. Businesses are experiencing a spike in liability lawsuits surrounding masks and other safety measures and enforcement. Unfortunately, companies are being berated coming and going, with patrons suing for the establishment trying to enforce mask-wearing and also for not applying it diligently enough. The seriousness of the issue cannot be understated, with some of these lawsuits containing claims of discrimination (from patrons with disabilities), negligence, or even wrongful death.
Conclusion
Without more robust measures to prevent transmission, communities across America risk another round of shutdowns, broad restrictions on non-essential activities, and irreparable economic harm.
In our recent letter to the President and National Governors Association, the Chamber asked for:
- Establish guidance on the appropriate metrics (e.g., positive tests, hospitalizations) for imposing location-based mandatory mask requirements in all public spaces;
- Develop model mandatory mask policies that are simple and do not impose the enforcement burden on organizations without such expertise, such as businesses and non-profits; and
- Make clear that businesses and non-profits will not be held liable for refusing entry or services to an individual who is not complying with face-covering requirements.
A national mask standard, implemented locally, offers the surest way to protect public health and promote economic recovery.
