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Anyone knowledgeable about the legal side of enforcing mask policies? I need advice


cjzimmer1
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I run a small homeschool gym class.  The county we live in requires a mask (per public health) and the facility we use follows the mask mandate.  I fully support the masks even though I know it's not super fun participating in gym class while wearing a mask.  We've been running it for 2 months already and the kids are doing fine with it.  However, I now have someone who wants to join who opposes masks and thinks they should have an exception.  The facility says they are suppose to grant an exception to anyone who asks (because you know they can't ask if there is actually a medical reason or someone just doesn't want to).  Does anyone know from a legal standpoint can you deny someone participation?  I realize that laws will vary but as this is just a small group it's not like I have any legal resources to consult and was curious what others have seen in their areas.

And for full disclosure, my mask wearing family got COVID from a nonmask wearing child whose parents thought it was too much to ask of a child so this issue really gets to me. 

If this person continues to persist and I can't find an out, I'm half tempted to just cancel the activity because I think it's completely unfair for this family to put all the other families at increased risk.

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I think it varies by jurisdiction. Here we are 'allowed' to request official documentation for any exemption requests, and there is a standard for a 'legitimate' medical exemption. In some cases, even with an legitimate documented exemption, people are still only able to do 'essential' things (ie enter grocery stores) not restricted things (ie sports classes).

You will probably need someone local to you to help you figure out the particulars of your area.

On the other hand, if nobody knows anything... who's to say you can't ask the reason and require documentation? They say, "You can't do that." / You say, "Yes I can." -- if the law isn't clear, simply standing your ground and enduring the conflict might be enough to get things your own way.

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I’m no legal expert, but it’s hard to imagine that you, as the leader of a private class, can’t say masks are not optional. I don’t know that it matters that the facility allows exceptions with no questions asked, unless you are running the class for them, rather than just using their facility for your class. It’s your private class, so it’s your rules. If they don’t like it, they don’t have to participate. It doesn’t seem any different than requiring particular clothes or shoes for participation or not allowing jewelry, as is often the case for lots of sports or PE activities.

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You are renting a facility and have the right to exclude based on the criteria you choose.  Your group is private and is not a public accommodation and you can exclude anyone - no reason is actually needed.  Just inform anyone signing up that a mask is required, and that anyone choosing not to wear a mask is violating class policy and will be asked to not participate.

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I didn't know you could have anyone not follow the mask mandate.  We do everything in a different county because nobody follows anything here.  There hasn't been a mask mandate since May here.   I have seen people in stores not following it, but not people in the kid classes that we do there.  I felt like it was up to the business too to say they require it and that was that.  

 

I like Starr's idea of the class being full.

 

I am sorry your whole family got Covid.  😞    Did that happen when your family was wearing masks and the other child wasn't?  

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I have a mask policy, and I have told, and gotten support from my center director, that anyone who comes without a mask will Be given one to put one on, and if they refuse, the lesson is over, with no refunds or makeups given. I also have the option of zoom lessons for those who choose. 

 

 

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I agree that regardless of what the facility says, you set the rules and standards for the class you teach. I cannot imagine that you would be required by law to even offer an exemption. Now whether or not the facility chooses to sever its relationship with you is an entirely separate matter. Some management will be supportive, and others will not want to make waves. But as a private teachers it would not be negotiable for me.

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Ironically, our state had exceptions for gyms, etc. so long as the person was *distanced* and engaged in *active* exertion. But if your location does not allow for that and actually expects people to exercise while masked, then that's also the assumption people signed up under. Special snowflakes can't just come in and pity party, because that's totally ridiculous. I'm NOT pro mask, and I think that's outrageous.

Did you have participants sign a document to join the class? Does the doc state participation requirements? Your requirements should be there. If not, the tidiest thing would be to say no new enrollments till the new semester and have everyone resign a participation contract with the new semester.

Edited by PeterPan
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You say you are "running" this class ... are you teaching it on behalf of the facility, or renting it for your own private class?  That might affect the answer.

I'm not an expert, but I would look into whether or not individual activities are allowed to have their own specific rules.  It seems reasonable and not a new idea.  I mean, classes we've attended have had various restrictions such as age, grade, experience level, residence, ....  What if you called it "masked homeschool gym class"?

One possible way to address this case is to not allow new entrants in the middle of the term.  Hopefully Covid cases will be much lower by the next term.

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58 minutes ago, Frances said:

I’m no legal expert, but it’s hard to imagine that you, as the leader of a private class, can’t say masks are not optional. I don’t know that it matters that the facility allows exceptions with no questions asked, unless you are running the class for them, rather than just using their facility for your class. It’s your private class, so it’s your rules. If they don’t like it, they don’t have to participate. It doesn’t seem any different than requiring particular clothes or shoes for participation or not allowing jewelry, as is often the case for lots of sports or PE activities.

 

58 minutes ago, AnotherNewName said:

You are renting a facility and have the right to exclude based on the criteria you choose.  Your group is private and is not a public accommodation and you can exclude anyone - no reason is actually needed.  Just inform anyone signing up that a mask is required, and that anyone choosing not to wear a mask is violating class policy and will be asked to not participate.

Thank you for this!  This was the aspect I hadn't been thinking about.  But after further discussion with the facility, they too said we are considered a private group so I can set whatever policies I want.  The class is offered through a homeschool group so now I've just got to get the group's buy-in to set the policy (not sure I'll be successful but at least it's got me pointed in the right direction of where I need to focus my efforts)

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1 hour ago, AnotherNewName said:

You are renting a facility and have the right to exclude based on the criteria you choose.  Your group is private and is not a public accommodation and you can exclude anyone - no reason is actually needed.  Just inform anyone signing up that a mask is required, and that anyone choosing not to wear a mask is violating class policy and will be asked to not participate.

I'm not really renting space.  I'm coordinating.  I advertise to homeschool groups, Collect their info/payment and pay facility on a per student basis for classes taught.  They teach and provide space.  I wasn't sure if I was considered a "private" group since technically they are running the class and I just provide the people.  

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1 hour ago, mommyoffive said:

I didn't know you could have anyone not follow the mask mandate.  We do everything in a different county because nobody follows anything here.  There hasn't been a mask mandate since May here.   I have seen people in stores not following it, but not people in the kid classes that we do there.  I felt like it was up to the business too to say they require it and that was that.  

Even with the mask mandate there are exceptions but you can't actually ask people if they have an exception because that would violate HIPPA so anyone who doesn't want to wear one just doesn't and there really isn't any repercussions.

 

I like Starr's idea of the class being full. The class is advertised as being able to join anytime so can't really backtrack on that one now.

 

I am sorry your whole family got Covid.  😞    Did that happen when your family was wearing masks and the other child wasn't?  Yep, that's exactly what happened.  

 

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1 minute ago, cjzimmer1 said:

 

The class is offered through a homeschool group so now I've just got to get the group's buy-in to set the policy (not sure I'll be successful but at least it's got me pointed in the right direction of where I need to focus my efforts)

I don't think you really need to get the group's buy in ahead of setting your perfectly reasonable policy that is in line with your local mandates. Just say, "I'm sorry this is a masked activity, and I'm not able to offer exemptions." -- if *they* want to take it to the group... you can just let them be responsible for taking that step. You don't need to do their work for them ahead of time!

If you just have a policy and 'act natural' chances are there will be grumbling, but not an actual issue. If you approach the group/leadership and make it an open question, then they get the opportunity to tell you what to do. There's no reason to give them that role on a silver platter by your own initiative! It's not an open question. You are in charge of the class. Act like it's your decision and, poof, it's your decision. If they don't like it, *they* are free to contact *you* about it.

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57 minutes ago, goldberry said:

You are not required to give an exemption as the organizer of a private event.  

This is music to my ears!  But since I'm representing my homeschool group, I have to see if I can get their buy in to the policy.  Even if they don't make it a blanket policy, I'm hoping they will allow me to set it for this activity since I'm the one coordinating it and being exposed (as well as all the other participants who are coming from a variety of other homeschool groups)

53 minutes ago, Faith-manor said:

I agree that regardless of what the facility says, you set the rules and standards for the class you teach. I cannot imagine that you would be required by law to even offer an exemption. Now whether or not the facility chooses to sever its relationship with you is an entirely separate matter. Some management will be supportive, and others will not want to make waves. But as a private teachers it would not be negotiable for me.

I don't teach, I coordinate.  I advertise it to various homeschool groups and collect payment and then present it the facility. The facility, determines the activities, provides the space and teaches the classes.  I think they take the "give an exception when asked "policy because mask wearing is so highly controversial and it's not worth the abuse their employees might have to take if they tried to enforce it more strictly

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59 minutes ago, PeterPan said:

Ironically, our state had exceptions for gyms, etc. so long as the person was *distanced* and engaged in *active* exertion. But if your location does not allow for that and actually expects people to exercise while masked, then that's also the assumption people signed up under. Special snowflakes can't just come in and pity party, because that's totally ridiculous. I'm NOT pro mask, and I think that's outrageous.

Did you have participants sign a document to join the class? Does the doc state participation requirements? Your requirements should be there. If not, the tidiest thing would be to say no new enrollments till the new semester and have everyone resign a participation contract with the new semester.

Our mandate is on the county wide level as our state doesn't have a mask mandate in effect (to my knowledge anyways, I haven't really followed it since we've simply worn them through this whole thing, mandated or not) but when I went to check it right now there is nothing listed about gyms being and exceptions.  The regular members of the gym are all wearing masks so I'm guessing they don't have a choice.

The form that each participant signed signs says "They agree to follow the mask mandate as set by ABC facility" because at the time it was the simplest way to word it because I didn't want people coming back to complain at me.  And since ABC followed Public Health it took "ownership" of the decision off any person's shoulder and put it on the entity Public Health so I didn't have to defend or denounce any policy they made. But I didn't know anything about the exceptions back when I wrote it up so I can I may need to tighten up the wording even if it means potential backlash gets directed at me.

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Just now, cjzimmer1 said:

But I didn't know anything about the exceptions back when I wrote it up so I can I may need to tighten up the wording even if it means potential backlash gets directed at me.

Yeah, that's awkward, because everyone else in the class will be pissed if they signed up with their assumptions and nonmaskers come in. Safest thing is to say no new enrollees till the next semester. That's how most classes around here roll anyway.

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36 minutes ago, SKL said:

You say you are "running" this class ... are you teaching it on behalf of the facility, or renting it for your own private class?  That might affect the answer.

I'm not an expert, but I would look into whether or not individual activities are allowed to have their own specific rules.  It seems reasonable and not a new idea.  I mean, classes we've attended have had various restrictions such as age, grade, experience level, residence, ....  What if you called it "masked homeschool gym class"?

One possible way to address this case is to not allow new entrants in the middle of the term.  Hopefully Covid cases will be much lower by the next term.

I coordinate is a better term.  I promote it to area homeschool groups (as a joint activity open to various groups but "run" by the homeschool group I'm in).  I answer questions, sign people up and collect money.  The facility decides activities, provides the space and the teachers.

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21 minutes ago, bolt. said:

I don't think you really need to get the group's buy in ahead of setting your perfectly reasonable policy that is in line with your local mandates. Just say, "I'm sorry this is a masked activity, and I'm not able to offer exemptions." -- if *they* want to take it to the group... you can just let them be responsible for taking that step. You don't need to do their work for them ahead of time!

If you just have a policy and 'act natural' chances are there will be grumbling, but not an actual issue. If you approach the group/leadership and make it an open question, then they get the opportunity to tell you what to do. There's no reason to give them that role on a silver platter by your own initiative! It's not an open question. You are in charge of the class. Act like it's your decision and, poof, it's your decision. If they don't like it, *they* are free to contact *you* about it.

I'm am on the board of my homeschooling group and while I'm coordinating the class, it's a representation of my homeschool group, not something I own and can control policy on.  All the policy changes that have occurred over the years, have went past the board for approval before being put into effect so I don't feel like I can suddenly change that process.  I know several members of the board are anti mask (but thankfully none of the hostile type) so I'm hoping to convince them that since I'm the one coordinating and being exposed each week, that they will agree to a policy that makes "ME" more comfortable.  

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4 minutes ago, cjzimmer1 said:

so I'm hoping to convince them that since I'm the one coordinating and being exposed each week, that they will agree to a policy that makes "ME" more comfortable.  

So *you* agreed to teach under those terms, don't have permission to tighten the terms up farther (to say teacher requires mask no matter what), and were fine till the gotcha situation with the loophole. Ugh. I mean, I feel for you. If the group doesn't want to let you have your rule in your class, you could walk. 

Really, if the larger group set up this whole scenario, then they ought to give you cover.

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24 minutes ago, mommyoffive said:

That is really scary and upsetting that you got it while mask wearing and the other kid wasn't.  Ugh.  I would be so upset.  I hope you guys are all doing ok now. 

Yes I was pretty irritated when my son told me so and so wasn't wearing a mask at his class (not gym class) and then a few days later finding out so and so had tested positive and then us starting to get sick within the next day or two.  Overall we came through pretty lightly, but we had been at gym class (MASKED!) in those few days before we were notified that so and so was positive and I was so worried that we had exposed the kids at class to it but no one in class caught it even though we were in the contagious period (part of why I've become even more adamant about everyone wearing masks!) 1 mask equaled spread, 2 masks there was none.

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7 minutes ago, PeterPan said:

So *you* agreed to teach under those terms, don't have permission to tighten the terms up farther (to say teacher requires mask no matter what), and were fine till the gotcha situation with the loophole. Ugh. I mean, I feel for you. If the group doesn't want to let you have your rule in your class, you could walk. 

Really, if the larger group set up this whole scenario, then they ought to give you cover.

I don't know if I have "permission" or not.  I'm the only board member whose kids participate in this particular activity so pretty much when I've brought up wording change/issues they've been fine with whatever I propose but I know several of the board members don't like masks (they actually moved our monthly meetings to a different location to avoid the mask mandates in our county) and this class is offered as a "HOMESCHOOL name"  group activity not a "cjzimmer" group activity. So I feel like I need to get their buy in because they represent "HOMESCHOOL name" just as much as I do and it just doesn't feel right for me to dictate a policy change without their agreement.  Not sure if I'm explaining the group dynamic well or not.  

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6 minutes ago, cjzimmer1 said:

I don't know if I have "permission" or not.  I'm the only board member whose kids participate in this particular activity so pretty much when I've brought up wording change/issues they've been fine with whatever I propose but I know several of the board members don't like masks (they actually moved our monthly meetings to a different location to avoid the mask mandates in our county) and this class is offered as a "HOMESCHOOL name"  group activity not a "cjzimmer" group activity. So I feel like I need to get their buy in because they represent "HOMESCHOOL name" just as much as I do and it just doesn't feel right for me to dictate a policy change without their agreement.  Not sure if I'm explaining the group dynamic well or not.  

Are there possible consequences to the facility if your group is not in compliance with the mask mandate?  I run a nonprofit that has volunteers who are both pro and mask mandate but all have been good with protecting the owners of the facility we rent/use (including their staff) by recognizing that we don’t want to get them in any trouble as a business. 

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2 hours ago, AnotherNewName said:

You are renting a facility and have the right to exclude based on the criteria you choose.  Your group is private and is not a public accommodation and you can exclude anyone - no reason is actually needed.  Just inform anyone signing up that a mask is required, and that anyone choosing not to wear a mask is violating class policy and will be asked to not participate.

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Okay, I don't know how I did a reply with no reply but....

I live where we've had mask mandates quite a bit and I have a business offering classes to homeschoolers.   I don't offer any exceptions to the mask mandates because, as said above, I don't have to since I am not offering a public or required service.    Everyone who comes knows that masks are required, and other than last year around this time when things were still newish, I haven't had any problems. 

My insurance company is also requiring that I follow all local and state mandates, so that might be another avenue for you to look at.  My insurance can refuse claims if we are found to be in violation of mandates or laws.  

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1 hour ago, cjzimmer1 said:

Even with the mask mandate there are exceptions but you can't actually ask people if they have an exception because that would violate HIPPA so anyone who doesn't want to wear one just doesn't and there really isn't any repercussions.

That's actually not true. You can ask people if they have an exception and you would not be in violation of HIPAA. HIPAA applies to a health care provider releasing information about a patient to a third party. It does not apply to personal interactions like you're describing. There's a lot of misinformation out there about HIPAA, but it's actually pretty straightforward.

That said, you can ask, but the person you're asking doesn't have to answer you. But if you ask and they refuse to answer, that tells you something too. 

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10 minutes ago, whitestavern said:

It sounds like the facility, since it’s their space and they are teaching the class, would have to set the policy, no?

After further discussion with them, they consider us a private group so we are able to establish rules that may be different than their policy so this will give me an opening to create a policy that doesn't allow for exceptions.  I just have to make sure my homeschool groups board is in agreement.

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8 minutes ago, Jean in Newcastle said:

Are there possible consequences to the facility if your group is not in compliance with the mask mandate?  I run a nonprofit that has volunteers who are both pro and mask mandate but all have been good with protecting the owners of the facility we rent/use (including their staff) by recognizing that we don’t want to get them in any trouble as a business. 

This is a very a good point.  I will keep this in mind as a good argument point if I need to do any convincing to my homeschool board why it would be good to implement this policy. I know that school districts around here are being sued for not having a mask mandate and then kids are getting sick.  I suspect my tricky part in all this is they want to claim an exception which is perfectly legal and it doesn't look like you have to have any reason or proof for asking for an exception (from a businesses point of view as a private group I can set my own terms and don't have to allow exceptions)

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9 minutes ago, Wheres Toto said:

Okay, I don't know how I did a reply with no reply but....

I live where we've had mask mandates quite a bit and I have a business offering classes to homeschoolers.   I don't offer any exceptions to the mask mandates because, as said above, I don't have to since I am not offering a public or required service.    Everyone who comes knows that masks are required, and other than last year around this time when things were still newish, I haven't had any problems. 

My insurance company is also requiring that I follow all local and state mandates, so that might be another avenue for you to look at.  My insurance can refuse claims if we are found to be in violation of mandates or laws.  

Thank you!  I will look into this as well.

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10 minutes ago, TarynB said:

That's actually not true. You can ask people if they have an exception and you would not be in violation of HIPAA. HIPAA applies to a health care provider releasing information about a patient to a third party. It does not apply to personal interactions like you're describing. There's a lot of misinformation out there about HIPAA, but it's actually pretty straightforward.

That said, you can ask, but the person you're asking doesn't have to answer you. But if you ask and they refuse to answer, that tells you something too. 

Good to know!  All these little details are so helpful in me trying to figure out how to craft a response.   I've told the person will be contacting me about it so I'm trying to make sure I have a good coherent answer established before then.

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1 hour ago, cjzimmer1 said:

This is a very a good point.  I will keep this in mind as a good argument point if I need to do any convincing to my homeschool board why it would be good to implement this policy. I know that school districts around here are being sued for not having a mask mandate and then kids are getting sick.  I suspect my tricky part in all this is they want to claim an exception which is perfectly legal and it doesn't look like you have to have any reason or proof for asking for an exception (from a businesses point of view as a private group I can set my own terms and don't have to allow exceptions)

Be sure not to sell yourself short when you talk to the homeschool board, Stephanie! You hold all the cards right now, because if they don't back you up on your mask policy, you can simply tell them that you will have no choice but to cancel the activity entirely because you are not willing to make exceptions to your rule. 

I think you should be very firm about your rules, and that you shouldn't spend a lot of time trying to justify your reasoning. The last thing you want do is give anyone a chance to start debating your reasons for requiring masks. These are your rules; they are not open to debate or exceptions, and if the board wants to insist on an exception for one family, they will be hurting all of the existing families who will no longer have your activity available to them, because you will not hesitate to cancel if the board doesn't support your mask requirement.

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I teach a class in a mask optional church. I require masks in my class. Someone who was registered for the class told me that I can’t go against church policy. I told them that I can establish criteria for classes I teach. She & her daughter dropped out. Oh well. 

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I've found being straightforward and non-emotional to work well with mask policies. We do not currently have a mask mandate in place, but I was holding an event and required masks. A participant texted me to let me know they had a "medical" condition and couldn't mask but wanted to attend. I let them know that I was sorry to hear about their condition and that they were welcome to join virtually and what would be a good email address to send the invitation to? They wrote back letting me know not to worry, that they'd come in person and wear a mask. 🙄 I said - great, see you there and left it at that. 

Not sure if something like that work work, but it may be worth a shot?

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