With some localities mandating masks in public places, clubs need to consider the logistics, member management, and legal implications of mask and face covering requirements.
As health and fitness clubs reopen around the world amidst the COVID-19 pandemic, club operators are facing difficult questions about requiring employees and members to wear protective face coverings.
While all business owners are struggling with these issues, they can be even more complex for health clubs, as wearing a mask while exercising is uncomfortable at best and potentially dangerous for individuals with health conditions. In fact, the World Health Organization (WHO) advises against wearing masks during exercise because it can make breathing more difficult. Clubs will also need to navigate consumer perceptions and enforcement of any policies on face coverings or masks.
In addition to these questions, there are potential legal issues involving masks and disability laws in different countries, such as the Americans with Disabilities Act (ADA), which can create unique challenges for club operators.
The Basics of Masks & Face Coverings
As businesses around the country are reopening, much of the debate is centered around protective face coverings and an individual’s responsibility to use them when social distancing is not feasible.
Currently, the vast majority of U.S. states and a number of countries require individuals wear protective face coverings in public settings such as supermarkets, public transport, and in certain business sectors where social distancing is not possible. Some local governments are taking these mandates even further. For example, Vietnam, Venezuela, and Czech Republic require individuals to wear masks any time they are outside of their home.
With the increase in cases around the United States, parts of the U.K., Brazil, and Russia, there is a possibility that mask requirements will become even more robust in the coming weeks.
What Do the Experts Say?
The U.S. Centers for Disease Control and Prevention (CDC) recommends wearing a cloth face covering (not a surgical mask or N-95 respirator as these should be reserved for medical professionals) “in public settings when around people outside of their household, especially when other social distancing measures are difficult to maintain.”
Regarding wearing masks while exercising, the WHO recommends “people should NOT wear masks when exercising as masks may reduce the ability to breathe comfortably.” But wearing of face coverings in public is now strongly recommended by the WHO.
It is important to note that these are just guidelines; national, state, and local orders on masks have the final say.
It is also important to keep in mind the correct way to wear a mask as recommended by the WHO.
Beware of False Claims for Exemption to Mask Requirements
Some people are presenting cards or other documents that they are using to demonstrate that they are exempt from mask requirements. In the U.S., people are presenting documentation obtained through social media or the internet that may either bear the seal of the U.S. Department of Justice (DOJ) or phone numbers for agencies administering the Americans with Disabilities Act saying they are exempt from the mask requirement.
The DOJ issued an alert noting that cards and flyers that seem to be issued by the department are fraudulent. The U.S. government has not issued any documentation exempting people from mask requirements The alert notes, “The ADA does not provide a blanket exemption to people with disabilities from complying with legitimate safety requirements necessary for safe operations.”
Disability Laws & Medical Exemptions to Mask Use
Despite false claims for exemptions, there are legitimate reasons members and employees can be exempt from mask requirements. Laws that prohibit discrimination of people with disabilities can still come into play in some if not all areas of public life, including jobs, schools, transportation, and public and private places that are open to the general public.
For example, in the U.S., if an employee has a disability that prevents them from wearing a mask, the employer is legally obligated to provide a reasonable accommodation for the employee. The reasonable accommodation could take many forms, but would likely be something like substituting a face shield for a face covering, or reassigning the employee to a role where they are not in close proximity to others or allowing them to work from home, if possible, so they do not have to wear a mask.
When it comes to consumers, many national laws require businesses that are open to the public to provide individuals with disabilities equal access to a business’ goods and services. What this means for health clubs is that clubs that are open to the public must make reasonable accommodations to ensure equal access for individuals with disabilities.
The most important takeaway from national and other local legislation in deciding to mandate masks is that, in some countries, businesses must provide reasonable accommodations for customers who are unable to wear masks due to a disability, even during a pandemic.
How Can Clubs Enforce Mask Requirements?
Many state and local governments are moving toward requiring face coverings for individuals when they are indoors or whenever social distancing is not feasible. For example, Gov. Gavin Newsom of California on June 18, 2020 ordered face masks to be worn by the public whenever inside of, or in line to enter, any public space in California. Therefore, all members of the public should be required to wear masks at all times inside any California health and fitness club and while waiting in line (regardless if 6 feet of social distancing can be maintained).
This order begs the question, how will clubs enforce mask requirements?
First, if a customer is only refusing to wear a legally mandated mask over philosophical objections, clubs are allowed to refuse them service. In those cases, clubs are legally allowed to refuse service to anyone for not wearing a mask, provided that they are not exempt due to a disability.
Secondly, signage can further support a club’s goal of enhanced protections for their members. You can post notices at all entrances stating that customers must wear masks, and that the business reserves the right to refuse entry if the requirement is not followed. Posting signage stating the policy can be a proactive solution for dealing with difficult members.
Additionally, while the ADA does not specifically address face masks, the DOJ previously released guidance in the context of requiring medical documentation for individuals with service animals entering places of public accommodation, which indicates how the DOJ could interpret ADA in relation to masks. The DOJ stated that requiring “persons with disabilities to obtain medical documentation and carry it with them any time they seek to engage in ordinary activities of daily life in their communities” would be “unnecessary, burdensome, and contrary to the spirit, intent, and mandates of the ADA.” The DOJ would likely interpret the ADA similarly in the context of requiring medical documentation for face masks.
This brief, produced by the Southeast ADA Center and Burton Blatt Institute (BBI) at Syracuse University, is an excellent resource which provides more detailed information on how to respond to a request for an accommodation under the ADA regarding face masks.
With the increasing rate of COVID-19 cases in states across the country, it seems that wearing masks in everyday life will become a part of the “new normal.” It is extremely important to take the time now to consider the legal implications of masks in your club and develop policies to save yourself the headache in the future.
Jake Landry is the Public Policy Assistant for IHRSA. His primary responsibilities include monitoring legislation that affects the health club industry at the state and federal level and writing legislative alerts and articles on issues that affect IHRSA members. While not in the office, Jake enjoys soccer–both playing and watching–especially his beloved Liverpool F.C.
The International Health, Racquet & Sportsclub Association (IHRSA) is a global community of health and fitness professionals committed to building their businesses and improving their communities’ health and well-being. The mission of IHRSA is to grow, protect, and promote the health and fitness industry, and to provide its members with the benefits that will help them be more successful. IHRSA and its members (health clubs and fitness facilities, gyms, spas, sports clubs, and industry suppliers) are dedicated to make the world healthier through regular exercise. For more information visit www.ihrsa.org.