Can a business require masks?

Some years ago, I went to a “dollar” movie theater a few days after having seen a report on TV about children with head lice.

Thinking maybe dollar movie theaters were not as clean as full price theaters, I looked at the back of the seat I was about to occupy and wondered when, if ever, the upholstery had been cleaned.  It could hold residue from of every head that had touched it for months or years.

I spread my jacket over the seat back. That was enough protection.  Then I thought, don’t assume full price theaters are cleaner. I vowed I would never again attend a movie without doing this.

I have never heard of anyone getting lice from a movie theater. But it’s not impossible.  A friend who worked with children from abusive backgrounds told me she had to delouse her office upholstery several times.

The movie theater incident happened before Covid. Now, theaters, like other businesses, are much more conscious of sanitation.  Reassuring customers about cleanliness is now a marketing tool.  Nevertheless, the picture of some grimy head is stuck in my memory. I will probably cover the seat with my jacket for the rest of my life.

That is, if I ever go to a movie again.

For the foreseeable future, I am certain I would only go to a movie that requires everyone to wear masks.

The recent change in guidance from the CDC has confused everybody. Many of us are asking the same question: If everyone who is vaccinated no longer has to wear masks, but in a crowd of strangers we don’t know who is vaccinated and who isn’t, how can we be sure we’re safe?

There is another slightly more complicated question. What is the right of a business to set a standard regarding masks?

Remember the signs that said “no shoes, no shirt, no service”? Store and restaurant owners wanted to keep certain types of people out of their establishments. That practice was described as a way of keeping hippies out, but it could have simply been a declaration of cleanliness. Business owners were within their rights to do that.

A few years ago, after a convenience store shooting, I asked whether business owners have the right to prohibit customers or employees from bringing guns into the store. The answer is mostly yes, but requirements are fuzzy and vary from state to state. In New Mexico the answer is yes with some exceptions, and there is a long list of places where guns are prohibited by law.

Now I ask, similarly, whether the store owner has the right to require masks or prohibit them. A number of legal websites suggested that business owners are within their rights as long as they are acting in the general interest of health and safety.

An employment lawyer friend helped me to get more specific. The basic answer is that state laws are largely silent on this matter so some interpreting is necessary.

Laws prohibit business owners from certain specific actions, such as those related to discrimination on the basis of race, gender, and so on. If the business owner’s action does not violate an existing law, the owner can set the rules for his own property.

Right now, as we are transitioning cautiously back to normal, I would prefer to patronize stores that require masks. Someone else might prefer stores that prohibit masks or that leave it up to the customer.

 Just remember that you do not have absolute freedom of choice on somebody else’s property. But you can choose where you shop.

No shoes, no shirt, no mask, no service. That is okay with me. And you might want to cover the back of the seat. That is  your choice.

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