Mask Guidance for Businesses

This week, Governor DeWine mandated that masks be worn in public in all “Level 3” and “Level 4” counties based on the current community spread of COVID-19. This follows mandates from individual cities around the state. Here’s what you need to know:

Ohio Level 3 Counties: As of June 9th, seven Ohio counties are under “red alert” and have been designated as a “Level 3” county. Franklin county is close to a “Level 4,” indicating the most severe level of community exposure and spread. The mask mandate applies to the following counties: 

• Butler

• Cuyahoga

• Franklin

• Hamilton

• Huron

• Montgomery

• Trumbull

As of July 10th the following counties were added to the mandate. For up to date information, visit the public advisory map showing the county levels.

• Wood

• Lorain

• Summit

• Fairfield

• Pickaway

• Clermont

Ohio’s Color Code System: Within these counties, face masks are required in public. Face masks are still highly encouraged, though optional, for Ohio’s 81 remaining counties. All counties that move to a Level 3 designation will require face masks at that time. County levels are based on indicators, such as new cases per capita and the rate of hospital admissions. Rankings will be updated every Thursday. 

Ohio Mandate Requirements: The state’s mask mandate order applies to any indoor location other than a residence, to people who are outdoors and unable to consistently maintain 6-foot social distancing, and to those waiting for, driving, and/or riding public transportation. Facial coverings must cover an individual’s mouth, nose, and chin. 

Ohio Exceptions from Required Face Coverings: 

• Children under 10 years old;

• Those with a medical condition, including a respiratory condition, mental health condition, or disability if their physician has advised against wearing a mask;

• If communicating with the hearing impaired;

• Those alone in an office or personal workspace not accessed by the public;

• While actively eating or drinking when seated at a table in a restaurant;

• Those engaging in broadcast communications, officiating a religious service, actively participating in an athletic practice or competition sanctioned by the Department of Health, and those actively engaged in exercise as long as social distancing is practiced;

• Those engaged in public safety, like first responders and firefighters;

• Places where masks are prohibited by law or regulation, where masks are in violation of documented industry standards, or where masks are in violation of a business’s documented safety policies.

Violations are misdemeanors and will be enforced by state and local officials. 

City and Locality Mask Mandates: Ohio’s mandate specifically states that it does not override any locally-issued mandates that are more restrictive than the one issued by the state. 

Many cities and localities around Ohio have implemented their own mask mandates, including Cleveland, Dayton, Cincinnati, and Columbus. Locally, Dublin, Hilliard, Bexley, Upper Arlington, Westerville, and other surrounding suburbs have also mandated face masks. The enforcement mechanisms for these mandates and the associated penalties for violations vary by individual mandate. Penalties may include monetary fines and/or misdemeanor charges.

For example, Columbus’ mask mandate carries individual fines of $25 for each violation; for businesses, the fine is $500 on the second violation and $1,000 for any subsequent violations. An appeals process has been established for anyone cited under this ordinance. Most mandates are enforced by local health agencies who will send out an investigator when someone calls in a complaint - those complaints may come from business owners, employees, or shoppers. 

Businesses Must Take the Following Actions:

• Check the requirements of your city or locality mandate. If it’s stricter than Ohio’s, your city’s mandate will be controlling. You may be subject to a local mandate even if you’re not in a Level 3 or 4 county;

• All of your employees, not otherwise exempt, should already be wearing a mask. Everyone who can work from home should still be working from home as much as possible;

• Customers are now required to wear a mask if your area is subject to a mandate. You should deny entry to any customer who refuses to wear a face-covering (who isn’t otherwise exempt), such as children under 10 (We’ll discuss handling disability/medical claims below); 

• Post notices of mask requirements on your front door to alert shoppers of local requirements. Make sure the phone number for your local health department is readily available to employees if requested by a customer; 

Customers Claiming Face Mask Exception for Medical Condition or Disability:

First of all, before you even run into this situation, create a reasonable accommodation plan for your business and clearly communicate it to your staff. 

The ADA does not require you to permit entry without a mask so long as you can provide accommodation, nor should you, lest you risk being fined for violating the mask mandate (ADA: Americans with Disabilities Act).

• You are permitted to deny entry to a customer not wearing a face covering so long as you offer reasonable modifications to your services so that a customer with a disability can take part in the services offered; 

• Modified services, such as curbside pick-up or offering to do the customer’s shopping for them while they wait outside or in their car, are perfectly legal, acceptable modifications that would satisfy any obligations your business has under the ADA to accommodate a person with a disability. Other accommodations could include allowing a customer to wear a face shield instead of a mask;

Be aware of the following “scams:”

• “Mask exemption cards” that state the bearer is exempt from wearing a mask under the ADA are fake - there’s no such thing as a “mask exemption card” or another record of exemption under the ADA. They may appear to bear an “official” Department of Justice logo or seal, but these cards have not been issued by any government agency and carry no legal authority; 

• Documentation or claims that an individual isn’t required to disclose a disability under HIPAA are also false. HIPAA (Health Insurance Portability and Accountability Act) only requires health care providers not to share protected patient health information, and it also provides patients with access to their own medical records: that’s it.

If a customer chooses not to wear a face-covering or take advantage of a reasonable accommodation offered, you’ve satisfied everything you’re required to do under the ADA. You haven’t denied them service because of a disability - you’ve offered them a reasonable and safe alternative to obtain the same goods and services as available to customers without a disability. You are under no legal obligation under the ADA to allow them to enter without a mask if an accommodation can be made, and they should not be permitted to enter without a mask. You can also contact the local health department to enforce the mask mandate, if necessary. Additionally, as always, you are well within your rights to contact local law enforcement if a customer refuses to leave or becomes abusive or violent with your staff or customers.