The Centers for Disease Control and Prevention’s (CDC) latest guidance that fully vaccinated people no longer need to wear masks or social distance in many settings raises questions for businesses in retail, hospitality and other settings open to the public. Last week, we discussed considerations for businesses considering relaxing their mask and social distancing policies for employees. Business open to the public may have questions on how the CDC recommendations impact face covering policies they have established during the pandemic.

Businesses who are interested in relaxing mask requirements for customers should consider the following:

1. Check if state/local emergency orders require customers to wear face coverings in the establishment. If so, then the order controls.

2. If there are no such applicable requirements, the CDC’s recommendation does not prohibit a business from continuing a policy requiring customers to have face coverings in the establishment, subject to reasonable accommodation obligations and/or the obligation to modify a policy for disabled individuals.

3. The business may contemplate modifying a policy requiring customers to wear face coverings to only require unvaccinated customers to wear face coverings. Putting aside the practical challenges of reliably identifying vaccination status under these circumstances, such a policy is consistent with the CDC recommendation that unvaccinated people should still wear face coverings.

4. Where businesses establish such a policy as described above, they may ask a customer who is not wearing a face covering whether they have been vaccinated, so long as there are no state or local laws prohibiting businesses from inquiring about vaccination status or treating individuals differently based on vaccination status. While the Department of Justice (DOJ) has not provided guidance on whether this would be a medical inquiry under Title III of the ADA, the Equal Employment Opportunity Commission (EEOC) has issued guidance that such an inquiry is not prohibited under Title I of the ADA. However, requiring proof of vaccination is not recommended due to legal uncertainties on whether such documentation is permitted under Title III of the ADA.