Lexington, SC (Paul Kirby) – Recently, some people have reported that they were shopping in a municipality in Lexington County and were barred from a business that serves the general public because they were not wearing a face covering. These people told business employees they were covered under one of the exemptions, so they did not need to have their faces covered to do business there. The management of the business still would not let them come in and shop there, basically barring them from the business.
In many of the larger towns and cities in the county, leaders have passed emergency ordinances that say when you go into a business that has customers and employees conducting business face-to-face with one another, you must wear a face covering of some type. However, every one of these ordinances includes several exemptions that some people could meet.
The most common exemptions to the face coverings ordinances includes someone’s religion preventing them from covering their faces. All ordinances also provide exemptions for people with a health condition that prevents them from covering their face. Many ordinances also exempt minors under the age of 10 who are accompanied by someone older. If that older person has made a reasonable effort to make the child wear face coverings but they just won’t, the child is exempt. If you meet one of these exemptions, you do not have to wear a face covering according to the ordinances we’ve reviewed.
So, are there any existing laws that come into play if some business owner or manager makes an issue of you not wearing a face covering even if you believe you’re exempt? Can they legally refuse to let you in if you meet an exemption? We consulted several local attorneys about those questions and for the most part, we got very similar answers. Of course, these are all opinions that could be appealed for years and years.
The first attorney we spoke with said, “These questions are arguable in civil litigation for sure, but I wouldn’t touch cases like this with a ten-foot pole.” He said that any attorney that takes a case like this would have to have a tremendous amount of time and resources in order to bring it to closure. He said in Lexington County, only a few of the most prominent firms would have those kinds of resources to expend.
All attorneys we consulted said that if you truly have a medical condition that prevents you from covering your face like asthma or anxiety attacks and your doctor is willing to say that for you, it could be argued that if the management of an establishment did bar you from doing business there they probably have discriminated against you based on your medical condition and that is against the law. That would be handled in a civil court of law according to our experts. Others concurred but one did ask if there was a similar business nearby with the same product and services that would allow you entry? He said that the defendant’s attorney could try and mount a defense based on that availability, but it would be a reach for them to win with that defense.
All our attorneys did agree that the management or employee had no right at all to ask what medical condition you had that would prevent you from wearing the mask. “It’s clear to me that this is information is protected by federal HIPAA laws that guarantee health care privacy. If someone asked you to reveal what was wrong with you, you have every right to refuse that information and they should not retaliate in any way,” one said.“If they did, they could very easily end up in civil court over that as well.”
All attorneys we asked said it’s a whole different ballgame if a law enforcement officer asked what exemption you have that prevented you from wearing a mask or face covering. All of them said that the law enforcement officers could not legally make you tell them any details of your health problems if you claim your exemption is due to a medical condition. Again, that information is protected by the federal HIPAA law. If they ticketed you and you decided to go to court to fight it, all our experts said you better have some evidence from a medical professional to back up your claim when you argue your case in front of a judge. They said your proof didn’t have to be detailed medical records but there should be some proof. One said a letter on letterhead saying you should or could not cover your face signed by the doctor should suffice. Another said a short note on a prescription pad might do the trick too.
We got some solid consensus when the religious exemption was questioned. All of our experts said if any business employee questions or bars entry into a business when you are not covering your face based on your religion, that business could be sued for discrimination. One said, “There are so many religions now besides the big four, Christianity, Judaism, Muslim, and Hindu, that I would say this would be very hard to defend against in court if anyone sued a business that barred someone’s entry who was claiming this religious exemption.” He continued by saying, “Just Google how many types of recognized religions are in the world today. The answer is about 4,300. It’s going to be hard for any judge to decide that some fringe religion you claim to be a part of doesn’t have a tenet that would prevent you from covering your face.” If you are ticketed by an officer of the law for this one, you may need to produce some proof but who’s to say what that even is? Preventing anyone from doing something or entering somewhere when they’re not covering their face if they claim a religious exemption would be very difficult to enforce and foolish for that business to do in my opinion as an attorney,” one of our experts concluded. “The bottom line is you almost can’t ever win when you take on religion in a court.”
How do you sum this up, good question! The truth is you just have to hope someone who isn’t wearing a mask is telling the truth when they claim an exemption. The few things that are clear is the person who isn’t wearing the mask has to act in a reasonable way if questioned. That person should calmly tell you he or she is exempt and both of you should let it be. There are very clear laws about disorderly conduct if either of you begins shouting, cursing, or making a scene. It’s also not okay at all to push, shove, hit, or in any other way physically attack someone. That’s clearly illegal too! You’ll probably be taken to jail by a nice officer wearing a really cool mask with POLICE embroidered on it or marked in some other creative way.
The real bottom line is that feelings are running high on both sides of the argument about whether you should or should not be made by any government to cover your face if you don’t want to. It’s going to take some time to work through all this and the best thing everyone can do is to stay calm, don’t stick your nose in where it doesn’t belong, and let whoever the ordinance designates to enforce those do their job. That’s the bottom line.
Please remember that everything our experts said is a legal opinion, not facts. That’s the way the law works. Everything is an opinion and even if a judge rules for you or against you, there’s always an appeals process until you get to the US Supreme Court.