BUSINESS LAW 101 / Legal aspects of masks

By Albert L. Kelley

During the coronavirus outbreak, medical experts advised that the main way the average person could reduce the risk of spreading the virus was by social distancing and wearing masks.  As a result, many communities issued laws mandating masks to be worn in certain circumstances.  Businesses began restricting customers to those that are wearing a mask.  Yet, many people have challenged this claiming they have a right not to wear a mask. To some, this is a political statement; to others it is a violation of the human rights; and to others it is based on false science. Now this is not a political column, nor will I debate science. Although I have a substantial background in science, that is not the purpose of this column.  This is a law column. So today we will look at the law as it relates to wearing facemasks.

Do individuals have a right not to wear a mask?  Yes-if they are in their own home.  Florida has a strong right to privacy.  What a person does in their own home for the most part is up to them, with some exceptions.  But once a person steps outside their house, the right of privacy is gone and with it the right not to wear a mask.

As a society, we allow the government to pass laws all the time that infringe on our ability to act ion certain ways.   The Courts have given them substantial leeway to curtail our activities when it affects public safety.  In 1992, the Florida Supreme Court said: “the state can infringe upon an individual’s property rights by regulating for the public safety”.  In 1976, they emphasized this in a footnote when they stated: “The discretion of the legislature is very large in the exercise of the police power, both in determining what the interests of the public require and what measures and means are reasonably necessary for the protection of such interests. In fact the courts often state that within constitutional limits, the legislature is the sole judge as to what laws should be enacted for the protection and welfare of the people and as to when and how the police power of the state is to be exercised. Thus, it is for the legislature to determine when conditions exist calling for the exercise of the police power to meet existing public evils, and when exerting its authority to suppress what it is free to regard as such an evil, it may adopt such measures having reasonable relation to that end as it may deem necessary in order to make its acts effective.”  The court recognizes city and county commissions in a similar vein as the legislature.  Based on the supreme court’s holding, the legislature may pass a law that restricts the public’s actions when the legislature deems it necessary for public safety.  A simple equivalent to the mask requirement is the law that requires all drivers to wear a seatbelt. While this would seem to be an individual choice, the courts have upheld the legislation that require seatbelt use.

The requirement to wear a mask is even more enforceable when the rule is enacted by a private business.  Businesses can enact whatever rules they choose as long as those rules do not discriminate against someone based on their race, color, religion, sex and national origin.    Requiring a customer to wear a mask does not violate these standards.  While some people claim that a mask requirement is a violation of the Americans with Disabilities Act, this is a mistaken interpretation of the ADA.  The ADA allows a busines to discriminate against the disabled if the business makes an effort to make reasonable accommodation.  So, if a person has a medical condition that would preclude them from wearing a mask, the store owner can still refuse entry if there is a reasonable alternative, such as offering to shop for the customer, offering curb-side service or even on-line shopping.

While many people may decry the requirement to wear a mask, that does not relieve them of the obligation.

Al Kelley is a Florida business law attorney located in Key West and previously taught business law, personnel law and labor law at St. Leo University.  He is also the author of four law books: (“Basics of Business Law” “Basics of Florida’s Small Claims Court”, “Basics of Florida’s Landlord/Tenant Law” and “Basics of Starting a Florida Business” (Absolutely Amazing e-Books)). This article is being offered as a public service and is not intended to provide specific legal advice.  If you have any questions about legal issues, you should confer with a licensed Florida attorney.

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