How Businesses Can Enforce the New Columbus Face Mask Order Effectively

Smart Summary

  • Businesses in Columbus are responsible for enforcing Mayor Ginther’s new face mask requirement, though they are permitted to rely on the word of anyone claiming to be exempt from the Order.
  • Businesses in violation are subject to criminal citations that amount to minor misdemeanors (akin to a traffic violation).
  • Businesses should consider posting notices that outline the guidelines and train employees to address unmasked patrons appropriately (language is provided in the article). 

By Executive Order of Columbus Mayor Andrew Ginther, as of July 3, 2020, face coverings are now required in public areas in Columbus, Ohio. Notably, while the actual requirement to wear a face mask applies to individuals, the focus of the enforcement mechanism is upon businesses. In other words, businesses are charged with enforcing the face mask requirement against their employees and customers (or browsers).

Here are the basics of the Order.

Where does the order apply?

The Order specifically outlines those areas where facial coverings are required as “indoor areas accessible to the public and within the confines of public or private transportation regulated by the City of Columbus.” Facial coverings are generally required by both employees and customers, if those individuals are to be within six feet of others. The order specifically calls out the following types of businesses:

  1. Retail Businesses
  2. Restaurants and Bars
  3. Personal Care, Grooming and Tattoo Businesses
  4. Child Care Facilities
  5. Transportation
  6. High Density Occupational Settings (even those taking place outside, such as construction or agriculture)
  7. Long-Term Care Facilities
  8. Healthcare Settings

Religious facilities and facilities owned and operated by the State of Ohio and the Federal Government are exempt from this Order.

Are there any exceptions?

There are many exceptions. A face covering does not need to be worn at work by anyone who:

  1. has a medical condition or behavioral disorder that would prevent him or her from wearing a mask;
  2. is under 6 years old;
  3. is actively eating or drinking;
  4. is strenuously exercising;
  5. is seeking to communicate with someone who is hearing impaired;
  6. is giving a speech for a broadcast or to an audience;
  7. is working at home or is in a personal vehicle;
  8. is temporarily removing his or her face covering to secure government or medical services or for identification purposes;
  9. would be at risk at work as determined by federal regulations or workplace safety guidelines;
  10. has found that a face covering is impeding visibility to operate equipment or a vehicle;
  11. is a child whose parent, guardian, or responsible person has been unable to place the face covering safely on the child’s face; or
  12. is within a religious facility.

Importantly, businesses must take those claiming an exception at their word. The Order says that those who decline to wear a face covering “should not be required to produce documentation or any other proof of a condition.” Businesses are entitled to rely on customers’ representations that they are exempt from the Order and businesses will not be liable under the statute if they rely upon such statements.

How is this enforced?

The Order states that businesses or other organizations that fail to enforce the Order will receive criminal citations for failing to enforce the Order. Pursuant to the Columbus City Code Section referenced in the Order (C.C.C. §2301.23), the criminal offense is a minor misdemeanor (similar to a minor traffic or parking infraction). The Order expressly states that law enforcement personnel are not to enforce the face mask requirement against individual workers, customers or business patrons. However, if a business refuses to allow a customer onto its premises because he or she refuses to wear a face covering, and that individual enters anyway, law enforcement is permitted to enforce trespassing laws against that customer.

Legal + Practical Considerations

One legal issue raised by the Order is whether it violates the Equal Protection Clause of the United States Constitution with its express intention of focusing on businesses and their enforcement of the Order, while failing to regulate the conduct of the very individuals who are required to wear the masks. The Order is also vague in its requirement that businesses enforce the Order, raising the question of whether a business’ request that an unmasked customer leave the premises is sufficient enforcement.

The unfortunate result of the Order is that businesses are put in the uncomfortable position of having to confront resistant customers and patrons (as well as workers), while individuals who choose not to wear a mask essentially fall outside of the punitive scope of the Order. There may, however, be practical solutions that help businesses manage this uncomfortable position. For example, it may be helpful for a business to post a Notice at its entrances stating the face mask requirement and making clear that it is a city requirement. Such Notice could also attach a copy of the Order for review by employees, customers and patrons. The Notice could also state that employees/customers/patrons who are exempt under the Order should notify store personnel of such exemption. In addition, the employees of the business could be trained to address any unmasked customers/patrons by stating:

“A City Order requires people to wear face masks in the store/building, but exempts certain people from this requirement, are you an exempted person?”

As noted above, the Order allows the business to take employees/visitors at their words with respect to whether they are exempt.

Businesses should consult an attorney for advice specific to their business.