The new CDC guidelines for wearing a mask were recently released. Even the most hopeful anti-maskers did not expect the CDC would come down so quickly to announce that fully vaccinated people no longer needed to wear a mask either outdoors or indoors.
The CDC‘s dictates were soon followed by proclamations from major retailers, including Costco, Walmart, Publix, and Trader Joe’s, who said their corporate policies would be in line with the CDC. These were the first big-name corporations to confirm mask-free shopping was immediately permitted, adding, in some cases, that vaccinated store employees can also work without a mask.
But things are about to get complicated. These large retailers have already said that even though the CDC has said masks are no longer mandatory, they will obey all of the laws in states that have masking regulations, known as mask mandates. We may be headed for a crash course in the intersection between a pandemic that refuses to quit and the legal ramifications of civil disobedience.
After a year of living with COVID-19, it stretches our belief that the Costcos of the nation are going to force employees, as part of corporate policy, to confront individuals in a state that requires masking where those individuals choose not to wear a mask. Practically, this is going to put a lot of pressure on states that have decided for the moment to keep their mask regulations intact. We’ve observed and perhaps learned a lot from the events surrounding Major League Baseball pulling the All-Star Game from Georgia, – we simply live in a time where corporate pressure on various levels of government can be exerted more quickly than ever.
But each state government or municipality that has masking regulations in place would have already changed it if they felt it was politically expedient to do so. As of the time of the CDC announcement last week, approximately half of the US states and territories still made masking requirements.
While these states are not going to respond well to major corporate pressure to get rid of masking regulation, even in light of the CDC’s dictates, a smart and thoughtful jurisdiction can use the CDC‘s new guidelines as a political shield, claiming that it is not actually them, but rather the CDC themselves, who are making the masking decision. That should sit fairly well with a lot of people, but really does nothing to avoid the mess that we find ourselves in right now.
From a legal perspective, there could potentially be civil rights claims if employees are forced to put their safety at risk in trying to enforce masking regulations in any jurisdiction given the CDC‘s decision last week. No large corporation wanted to find themselves in this situation, as they wanted the states and the CDC to be fully aligned so the decision as to whether or not patrons needed to mask would be totally settled and out of their hands. That is exactly the way it has been since masking began. We see this on TV all the time – somebody comes in refusing to wear a mask, and the store employee is following not only the law of the jurisdiction, not only corporate policy, but also the dictates of the CDC. That alignment no longer exists and it’s going to be a rash of problems.
Florida (which does not have a mask mandate) has been in the news a lot in this regard over the past week, as Gov. Ron DeSantis has stated he would pardon those who have previously violated mask mandates in any Florida municipality. John K. Lawlor, a Fort Lauderdale lawyer, agrees that “There could be trouble ahead where an employee of a business in a jurisdiction with a mask mandate is being asked to enforce that mandate against individuals claiming that neither the CDC nor the corporation itself is requiring masks.”
None of this is going to happen in the abstract. We woke up one morning to find that a former child star had gone viral on social media for his refusal to wear a mask in a California Costco – a state with a mask mandate requiring all people to wear masks in indoor public spaces. #CostcoJason also went viral on Sunday due to one employee’s refusal to allow someone, even a minor celebrity, to enter the store in violation of state regulations. But things can get very ugly very quickly over the upcoming days and weeks and we may sadly find the next social media memes in this regard to have a far less happy ending.
