b'GUEST VIEWDealing with the New Rules: Can You Get Sued for Enforcing a Mask Rule? the best practice for these situations? interactions are brief, business cannot The ADA also includes a direct threatTheAmericanswithDisabilitiesAct ask for documentation regarding a disabil- exception to the general reasonable ac-(ADA) once again comes into play as we ity. Currently, best practices would be that commodation requirement. The ADA de-Christine address requiring masks among both em- you cannot ask about an individuals dis- fines a direct threat as a significant riskployees and campers alike. ADA protec- ability to decide if they should really be to the health or safety of others that cannotTaylor tionsarespecifictoeachindividuals wearing a mask or not but there are some be eliminated by a modification of poli-disability. In order for a person to be able to additional things you can consider. cies. Previously, courts have decided thatbring a lawsuit for a violation of the ADA, The ADA only requires a reasonable ac- the direct threat must pose an actual risk.they would have to have both a medical commodation. So for example, if it is an Businesses cannot decide something is aAs the pandemic progressed and busi- condition that is considered a disability employee who cannot wear a mask, maybe direct threat based on stereotypes andnesses of all types were allowed to reopen, and would also need to demonstrate that you can provide them with a new position other generalizations about people withmultiple states enacted mask mandates, such a disability is directly impacted by where they arent interacting with other em- disabilities. Currently, ADA experts haverequiring most individuals to wear a mask, wearing a mask. ployees or customerslike cleaning the decided that the COVID-19 pandemicand leaving the businesses to enforce the The difficulty that arises is generally, bathrooms by themselves with them closed does in fact constitute a direct threat.mandate among their employees and cus- with the ADA, you cannot inquire further to customer use, or in rare instances a po- How do the other laws and guidelinestomers. Often the mask mandates have about what the individuals disability is sition that they can do from homesuch interact? Generally, state laws have similarcontained an exception for those who are when they ask for accommodation at your answer phones and take reservations. If its disability accommodations and require-2 years old and younger and those who can- campground. If someone came into your a customer, you can provide reasonable ac- mentscheck with an attorney who hasnot medically tolerate a mask. But should store and you insisted they wear a mask but commodation such as offering a curbside passed the bar in your state about the in-you let those people who cannot wear a they claim to have a disability, does the pick-up of store goods. These accommoda- teraction between state and federal dis-mask into your store? Your restaurant? Your conversation stop there? Sort of. Currently, tions would likely satisfy the ADA. ability law.arcade? Would you face a fine if the state the U.S. Department of Justiceor any A business is not required to make an The debate regarding mask mandates iscame by and saw individuals without a other federal agency with authorityhas accommodation under the ADA if it causes not just focused on health and safety con-mask? If you did not allow a person in with- not provided guidance about whether a an undue burden on the business, be- cerns. Many employees made to enforceout a mask, could they claim you violated business can ask for medical documenta- causethentheaccommodationisno mask mandates have been confronted withstate or federal law regarding disabilities? tion regarding someones inability to wear longerconsideredreasonable.Camp- increasing workplace violence from cus-As with everythingnothing will really a mask. Previously, the guidance regarding grounds must consider many things to de- tomers. Under the Occupation Health andstop a person from suing you. But what is asking for documentation was that where termine if a specific action or modification Safety Act (OSHA), employees have a duty towould result in an undue burden. Things provide a safe workplace for their employ-to consider include: ees. Campgrounds will now have to con-The type of modification required or re- sider the possibility of violent or threateningquested and its cost; is there another way customers who refuse to wear masks andto allow the customer to access your serv- how this would impact the safety of theirices that costs less, and/or is less harmful employees and other customers. Perhapsto your staff and other customers? the best way to prevent this is to address theThe financial resources of the camp- possibility head-on. Make all mandates andground making the modificationsuch as requirements clear to your guests. Let themthe effect it would have on the expenses or know when they make their reservation,resources of a campground or in the case again in the confirmation and have signsof employees, the impact this modifica- posted as many places as possible.tion would have on the operation of the You can also make clear your alterna-campground. tives, as discussed earlier, including num-What other helpful steps can you take to bers to call for curbside pick-up, delivery orprepare? Perhaps prepare ahead of time a anyotheraccommodationthatcanbelist of possible alternatives and accommo- made. When possible, give away masks fordationsyoucanprovidetheindividual freeit is much harder to object to wearingwhen a person with a disability requests a one if its readily available. Make sure yourmodification. Such as maybe you dont employees are all trained on your policies.need a mask, per se, but you can have some Consistency will protect them, your busi-other face covering. ness and your other customers. Treat everyguest the same.OSHA again might be implicated if youallow people to interact with your employ-ees without wearing a mask. Employershave to determine if they are exposingtheir employees to hazards, which now in-cludes COVID-19. As such, they mustensure a safe environment for their em-ployees and be sure to have policies inplace that protect them.As there is currently no expiration datefor the pandemic, its best for campgroundsto figure out a plan to address things movingforward. In the event these mandates persistfor many months, campgrounds shouldknow their obligations and have a plan foreach possible scenario. We will likely see ad-ditional lawsuits regarding mask mandates,disabilities and the safety of employees andit is never fun to be the test case.Christine Taylor, a graduate of UCLASchoolofLaw,isanassociateat TheTowne Law Firm, P.C., a law firm with at-torneys licensed in New York, Connecticut,Vermont, Massachusetts, WashingtonD.C., New Jersey & Pennsylvania. Taylorhas grown up in the camping industry.Her family has owned three campgroundsin both the Kampgrounds of America Inc.(KOA)and YogiBearsJellystoneParkCamp-Resort franchise systems. WCM12 -November 2020Woodalls Campground Management'