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Retailers Face Challenges Enforcing Mass. Mask Rule — And Its Exemptions

In Massachusetts, mask-wearing is required in places where the public is allowed to gather, like retail stores — unless wearing a mask presents a medical risk to a customer.

But a few retailers are not letting anyone in without a mask. Their policies have grown out of concern for employees, but they may not be in line with state regulations.

Public health officials at this point are clear: Masks are the best tool we have right now to stop the spread of the coronavirus. And this month the state of Massachusetts issued its latest, most stringent mask-wearing order. The state continues to exempt young kids and some people with medical conditions, but there is confusion.

Thomas Murphy, senior attorney with the Disability Law Center, said the center gets calls from people who have been turned away from stores because they can’t wear a mask.

"Mainly from individuals who have breathing difficulty, such as asthma or who rely on supplemental oxygen, as well as people with anxiety-related conditions that — if they're wearing a mask or a face covering — exacerbates the effects of their anxiety or mental health disorder," Murphy said.

State regulations say those who don’t wear a mask because of a medical condition or a disability are not required to provide documentation proving they have a health risk — and a business may not deny entry to someone claiming the exemption.

But this has led to a kind of grey area at a store’s entrance — sometimes leading to challenges.

A sign at the entrance to Guido's Fresh Marketplace in Great Barrington, Massachusetts.
Credit Nancy Eve Cohen / NEPM
A sign at the entrance to Guido's Fresh Marketplace in Great Barrington, Massachusetts.

Alana Chernila is marketing and events manager at Guido's Fresh Marketplace, a family-owned grocery with stores in Pittsfield and Great Barrington. 

"We have door ambassadors outside,"  Chernila explained. "They have been out there since it was snowing in March. And that job was sort of the front line of all these confrontations."

Chernila said occasionally customers have said things about wearing masks that made staff feel stressed or less safe.

"For a while, some people would just say they had a medical exemption and that was OK," she said. "But some people would be more confrontational about it and they would harass the staff in front of the grocery store."

Sometimes someone would say only that they did not want to wear a mask. Other times it was about whether wearing one is important or that the virus is a hoax. Once or twice, Chernila would explain to customers they would have to leave if they didn’t wear a mask.

"'I'm here to keep everybody safe and I need you to help me with that. And if you can't help me with that, then I can't let you in,'" she would explain to customers. "It's sort of a, you know, it's a contract that we all have to sign with each other right now."

But in late September, Guido’s made the contract simpler.

"We decided that we were no longer going to allow exemptions," Chernila said.

No medical exemption. If a customer doesn’t wear a mask for any reason, they’re not allowed in. 

"We're not just protecting the people in the store. We’re also protecting the whole community," Chernila said. "I mean, if someone gets sick who works in the store or who's shopping in the store, it's not just limited to the walls of the store."

But Guido’s offers an alternative: online shopping with curbside pickup. With a coupon to start.

Chernila said in an email the store got advice from a lawyer when they got strict about masks.

Brad Borofsky stands outside his store, Sam's Outdoor Outfitters, in Brattleboro, Vermont.
Credit Nancy Eve Cohen / NEPM
Brad Borofsky stands outside his store, Sam's Outdoor Outfitters, in Brattleboro, Vermont.

Another family-owned business, Sam’s Outdoor Outfitters, has a similar policy. The company has stores in Hadley, Massachusetts; Swanzey, New Hampshire; and Brattleboro, Vermont.

Standing outside the Brattleboro location, president Brad Borofsky — whose grandfather Sam started Sam’s in 1932 — said about 10 of his older, long-time employees stopped working last spring because of COVID-19.

"Because it seemed like a little bit too much of a dangerous environment," he said. "There was still too much of a chance of infection, and I think it still hasn’t changed much. So none of them have come back at this point."

Borofsky said his No. 1 concern is keeping his employees safe. So he started a "no mask, no entry" policy at all his stores, with a sign outside explaining it.

"It says curbside service is available for anyone who can't wear a mask for any reason," Borofsky said. "We’ll come out and ask what they're looking for and go get any options that they want to see and bring them out to them."

He said the store had no other choice.

"If we didn't make it mandatory for people to wear masks, we wouldn't be doing that much business because there's a lot of people that wouldn't come into the store," Borofsky said. "But the first problem I would have is, I don't think my employees would come into the store, so I wouldn't have to worry about being open."

Sam's Outdoor Outfitters in Brattleboro, Vermont.
Credit Nancy Eve Cohen / NEPM
Sam's Outdoor Outfitters in Brattleboro, Vermont.

Borofsky said the fact that someone can claim a medical condition without needing to prove it is "a hole" in the Massachusetts regulations. He said that "can create a problem."

Murphy, of the Disability Law Center, said it’s commendable that stores are offering ways for people who can’t wear a mask to get access to the goods and services of the store. Such accommodations may satisfy laws that protect people with disabilities from discrimination, he said, but they're not enough in Massachusetts.

"If the person does want to come into the store as opposed to being served curbside, then under the [state] order they are required to let them in," Murphy said.

Not letting them in, he said, is "definitely in violation of the mask order."

The Massachusetts Department of Public Health declined requests for an interview for this story. The state provides guidance to local health officials whose job it is to enforce the law, along with police. But Murphy doesn’t have high praise for enforcement.

"The enforcement of it is lackadaisical. And there is a possibility of a [up to $300] fine for any retailer who is in violation of the fine of the order, but they may be willing to risk that fine," said Murphy.

Some local health departments are choosing not to issue fines and instead explain the regulation to store owners.

Susan Mosler, a physician who is on the Hadley Board of Health, said — so far — the board has not issued any fines. She has met with store managers where there have been reports of customers without masks. But she said the medical exemption is clear.

"You cannot exclude someone from the retail location if they have a medical — if they claim to have a medical exemption, period," Mosler said.

Mosler added the state recognizes enforcing mask regulations isn’t easy for employees.

"It's concerning to put [a store clerk] in a position of having to confront a customer," she said. "It can really become quite a difficult situation. There could be threats of violence or other concerns. And I think the state understands that, that that might not be the best scenario."

Maybe so, but it is store clerks and managers who are the gatekeepers during this pandemic. 

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