One common question, now that North Carolina has begun their phased reopening, is “Do I have to wear a mask while in public?”

Update: Executive Order 147, effective June 26, 2020

Governor Cooper has signed Executive Order 147, which extends Phase 2 of reopening NC for three more weeks, as well as makes wearing face masks in public mandatory.

This means that you are REQUIRED to wear a face mask in public places – indoor and outdoor – where maintaining a physical distance of six feet is difficult, like in grocery or retail stores.

If a business or organization fails to enforce this order, law enforcement can issue a citation. Although law enforcement cannot criminally enforce the face mask requirements of this order against individual workers, customers, or patrons, they can cite a worker, customer, or patron with trespassing if they refuse to wear a face mask.

Wearing a Mask: According to the CDC and NC DHHS

The CDC recommends wearing a face mask in public settings, especially where social distancing measures are difficult to maintain, in order to slow the spread of the virus and help people who may have the virus and do not know it from transmitting it to others. The North Carolina Department of Health and Human Services (DHHS) has echoed the CDC’s recommendation, advising NC residents to “wear a cloth face covering if you will be with other people.” 

Wearing a Mask: According to the Law

The NC General Assembly recently passed Senate Bill 704, which made much-needed updates and amendments to NC laws in light of the COVID-19 pandemic.

One such law that was updated was about wearing face masks in public. Previously, NC law stated the following:

§ 14-12.8.  Wearing of masks, hoods, etc., on public property.

No person or persons shall in this State, while wearing any mask, hood or device whereby the person, face or voice is disguised so as to conceal the identity of the wearer, enter, or appear upon or within the public property of any municipality or county of the State, or of the State of North Carolina. (1953, c. 1193, s. 7.)

There were a few listed exceptions to this law, but one exception was added due to COVID-19: a person may now wear a surgical mask in public for the purpose of ensuring physical safety and health. Persons must, however, remove the mask upon the request of a law enforcement officer during a traffic stop, checkpoint, or roadblock, or if a law enforcement officer has reasonable suspicion or probable cause during a criminal investigation.

Wearing a Mask: According to Businesses

Wearing face masks in public places is encouraged by Mecklenburg officials, and it is now mandatory for people to wear one in public. Businesses and organizations that do not comply with requiring face masks risk receiving a citation from law enforcement and employees or customers that refuse to wear a face mask risk receiving a citation for trespassing.

We have seen incidents across the country – and in our own backyard – where masks have caused violence and incited debate and even “shaming.” According to data from a recent reader poll from Charlotte Agenda, 60% of consumers are more inclined to shop and dine at places who are requiring staff and customers to wear a mask.

Claiming Disability to Avoid Wearing a Mask

There is a concern, too, about some people trying to dodge orders to wear a face mask by claiming immunity under two laws that were written to protect the rights of the disabled – the Health Insurance Portability and Accountability Act and the Americans with Disabilities Act (ADA). 

The purpose of these laws is to protect patient privacy – you are “not required to disclose my medical conditions” – and to ensure that businesses do not discriminate against disabled people. However, the law has an exception: disabilities must be accommodated EXCEPT when there is “a significant risk to the health or safety of others.” 

Someone hoping to sue a store for refusing them entry without a face mask would be entitled under the ADA only if they were genuinely disabled.

Other Changes to Be Aware of Under Senate Bill 704

Additionally, under Senate Bill 704, liability and negligence for essential businesses were addressed:

• Essential businesses are not held liable for injury or death caused as a result of the customer contracting COVID-19 while doing business with the essential business
• Employees of essential businesses will not be able to pursue civil suits for contracting COVID-19, with exception for gross negligence, reckless misconduct, or intentional infliction of harm. Note: equipment shortage will not be considered gross negligence. This measure also does not preclude employees from pursuing criminal actions or filing workers compensation claims.
• Healthcare businesses have extended civil liability protection during the emergency declaration due to COVID-19. 
• This does not provide blanket civil immunity, however, and timing is crucial for pursuing legal remedy as these portions of the bill expire when the COVID-19 emergency declaration is rescinded or expires.

If you are a small business owner in Charlotte looking for legal advice in the wake of COVID-19, schedule a free 15-minute virtual legal consultation with our experienced and knowledgeable business law attorneys.