By Whitney R. Brown, Esq.
Pursuant to Alabama Act No. 2021-004, business entities enjoy broad immunity from COVID-19 related claims provided the business entity has reasonably attempted to comply with applicable public health guidance. Importantly, the act defines applicable public health guidance as guidance issuing by proclamation, order or rule of the governor, the state health officer or the State Board of Health. Centers for Disease Control guidance as well as municipal directives are thus outside the definition of applicable public health guidance, though cities still have the right to enforce heath and safety directives within their jurisdictions. Read more about Alabama’s civil immunity protection against COVID-19 lawsuits.
As of 5 p.m. April 9, 2021, the applicable public health guidance issued by the governor and the state health officer lifted a long-standing “mask mandate” in the state of Alabama. Instead, employers and businesses are encouraged to (a) encourage the use of masks and face coverings by employees and customers; (b) maintain six feet of separation between members of different households, or, alternatively, placing impermeable partitions between individuals (i.e., employees and customers); (c) regularly disinfecting frequently used items; (d) encouraging handwashing; and (e) preventing sick employees from coming into contact with other persons.
May businesses in a non-mask-mandating jurisdiction continue to require masks or face coverings? Yes. This is the business’ right as a private property owner to make and enforce this decision, subject to providing reasonable accommodations for those with disabilities (discussed below).
If we choose to continue requiring employees to wear masks, how should we communicate this? Using all methods of communication (email, bulletins, employee meetings), explain that although the statewide mandate has lifted, the state still strongly encourages the wearing of masks and face coverings. Explain that this is a way that you can show respect and care for each other and your customers, as we do not know the life and health circumstances of everyone who works and shops here. Consider separate meetings with supervisors to ensure they are reemphasizing and reinforcing the message. If an employee claims they are medically unable to wear a mask, you may consult with the Alabama Retail Association’s legal counsel, Lehr Middlebrooks Vreeland & Thompson, to obtain a questionnaire form to verify the existence of a covered disability and the absence of other accommodations.
If we choose to continue requiring customers to wear masks, how should we communicate this? Prepare customers with signage outside the door and a pinned post on social media and statement on your company website. Stay positive and stick with themes like protecting vulnerable populations (including pregnant women, who have had statistically worse outcomes with COVID-19); respecting the sacrifices of nurses, doctors, dietary workers, and other health care workers; minimizing the possibility that you might have to close your store for deep cleaning or place employees on leave if they’ve come into contact with an unmasked person from work. Have simple surgical masks available. Explain alternatives for customers who do not wish to wear a mask to continue to interact with the business (curbside, internet shopping, appointment shopping, window shopping, FaceTime shopping, outside/tent shopping dates). These alternatives will generally suffice to satisfy providing accommodations to customers with disabilities. If a customer asserts a disability as a reason not to comply with your request, direct them to these alternatives, or, you may permit disability-claiming customers to proceed maskless. Businesses should not demand proof of disability from customers. Train shift managers on handling such interactions as you would for any potentially hostile customer encounter.
How may we encourage the wearing of masks or face coverings and social distancing? By using signs on and outside doors as well as places where people are likely to queue up in line. Floor decals can be very helpful as well. If you are engaged with your customers on social media, consider a positive post about why you’re asking your customers and employees to continue to wear masks.
The governor’s office has developed signage resources for businesses that will require or encourage masks, and we encourage businesses to use these signs.
- Mask Preferred
- Mask Required for Service
- Please Wear A Mask
- Thank You for Wearing A Mask
- Thank You Gradient