In the face of concerns about the rapid rise in coronavirus infections and the increased transmissibility of the new strain, both Sainsbury's and Morrison's supermarkets have announced that they will refuse entry to customers not wearing face masks, unless the customer is medically exempt from wearing a mask. They have also indicated that customers must attend alone.
This reflects what many retailers are already doing in practice, but highlights the impossible position many businesses have been placed in. Although retailers cannot be fined for failing to enforce the wearing of face masks by customers, as employers they have a responsibility to provide a safe working environment for staff (and, of course, are likely to be criticised by customers and the media if many customers don't wear masks).
However, retailers are also rightly concerned about the risk of disability discrimination claims by customers refused entry, if the customer turns out to have medical grounds for not wearing a mask. We have observed a rise in the number of customer complaints alleging such discrimination during the pandemic. As well as the potential financial consequences of a successful claim, there are huge reputational risks for retailers already facing a very tough economic climate.
The reality is that if a customer claims to be medically exempt from wearing a mask, there is nothing that retail staff can do to check that claim effectively (particularly as many disabilities are not visible or obvious) and it is unwise (from a discrimination standpoint) to do so. The Government's guidance specifically states that customers do not need to provide evidence for any medical grounds. Just before Christmas, Costco sought to deal with this by introducing a blanket ban on customers entering the store without masks (or, in the UK, face shields for those who could not wear masks for medical reasons). It is now facing disability discrimination claims in the US and may face similar claims here. Introducing such policies is legally risky and may have serious reputational consequences.
Retailers should continue to inform customers that they must wear masks unless medically exempt, but should ensure staff are trained on disability discrimination and understand that the questions they can ask of customers are limited.
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