Updated Mask Guidance a Lawsuit Trap for Colorado Businesses

The never-ending executive order requiring face coverings in public spaces has been renewed yet again, but with a small politically motivated caveat:

Notwithstanding any provision of this Executive Order, individuals are permitted to remove their medical or non-medical cloth face coverings in Public Indoor Spaces if 80% of the individuals in the Public Indoor Space have shown proof of vaccination.

Jared Polis is shifting the enforcement duties to Colorado businesses, making them do the dirty work of deciding how restrictive to be with mask requirements.

What this effectively means (although it seems virtually impossible to enforce) is that a business could potentially stop worrying about masks if they could somehow track and prove which customers and employees had received the COVID-19 vaccine. Yet earlier in the mask order, we find several situations where the mandate does not apply to an individual (emphasis ours):

L. The following individuals are exempt from the requirements of this Executive Order:

– Individuals ten (10) years old and younger; or

– Individuals who cannot medically tolerate a face covering.

M. Individuals performing the following activities are exempt from the requirements of this Executive Order while the activity is being performed:

1. Individuals who are hearing impaired or otherwise disabled or who are communicating with someone who is hearing impaired or otherwise disabled and where the ability to see the mouth is essential to communication;

2. Individuals who are seated at a food service establishment;

3. Individuals who are exercising alone or with others from the individual’s household and a face covering would interfere with the activity;

4. Individuals who are receiving a personal service where the temporary removal of the face covering is necessary to perform the service;

5. Individuals who enter a business or receive services and are asked to temporarily remove a face covering for identification purposes;

6. Individuals who are actively engaged in a public safety role such as law enforcement, firefighters, or emergency medical personnel;

7. Individuals who are officiating at a religious service; or

8. Individuals who are giving a speech for broadcast or an audience.

This creates a situation where businesses are being asked to demand private and personal medical information from customers to determine what occupancy or mask requirements will be asked of them and potentially deny service to customers who fail to disclose this information. The Civil Rights Act of 1964 prohibits businesses from refusing service to customers because of skin color, race, religion, sex, nationality, or any physical conditions a customer can’t prevent (this would include disabilities, of course).

Imagine a patron enters a restaurant without a face covering, is asked to show proof of vaccination (so the business can stay in line with the new 80% vaccinated requirement), and fails to provide proof. The restaurant employee informs the patron that they cannot enter the business (or more ridiculously, turns around to the rest of the occupants and tells them they have to put on masks). The patron leaves then sues the business for discrimination because the business refused them service based on their disability.

This new vaccine caveat in the already illegal executive order is entirely unworkable and cannot possibly be navigated in the real world. Most businesses will simply continue to require masks upon entry, which allows the Colorado government to look like they are easing restrictions while forcing Colorado businesses to do their dirty work, who will no doubt face confrontation from patrons who simply want to decide for themselves what personal protective equipment to use.