By Patrick O'Brien, JD, Legal Coordinator, American Med Spa Association

Although wearing masks may no longer be legally required in states such as Texas and Mississippi, businesses are still able to set their own requirements for their customers. As stated in the Texas order:

"Nothing in this executive order precludes businesses or other establishments from requiring employees or customers to follow additional hygiene measures, including the wearing of a face covering."

Just like with "no shirt, no shoes, no service" signs, businesses can set their own requirements for employees and customers when it comes to masks. Additionally, state mandates are only one of several reasons why wearing a mask in a medical spa may be prudent or required.

Medical standard of care: Medical spas and the licensed professionals who work in them have a professional duty to provide medical services to the accepted level for safety and risks in the profession. This means taking appropriate steps to minimize the risk of infections or complications. The "standard of care" is different for different situations and is rarely spelled out, but it still must be adhered to. In normal times, this could mean taking measures as simple as washing your hands and swabbing with alcohol before providing a shot. But during this pandemic, it likely means that extra precautions will need to be taken. Given the airborne infectious nature of COVID-19, a mask is probably part of the current standard of care. We have discussed some steps and changes that can help reduce the risks of transmission previously on this blog. Although the medical and nursing boards may or may not give explicit guidance related to COVID-19, they will expect their licensees to take appropriate precautions. For information on cleaning and mitigating risk, see here and here.

General liability: You have a duty to exercise reasonable care towards others and can be sued for causing injury or harm by not doing so. As a business, you make sure your floors aren't too slippery or that there aren't and tripping or falling hazards in your office. This duty likely extends to minimizing the risk that a customer may contract a potentially deadly disease while in your business. Obviously, it would be difficult to prove someone got sick from one source instead of another, but it will be easier to prove in a place that hasn't taken any precautions versus one that regularly disinfects, requires masks and has social distancing measures.

OSHA: Employers are required to provide a workplace that is free from recognized hazards. COVID-19 exposure is currently a recognized hazard and, due to the close proximity employees need to maintain to provide services, that risk may be elevated. You can learn more about this here and Occupation Safety and Health Administration (OSHA)-provided COVID-19 resources here.

ADA: Please note that both patients and employees with disabilities who are unable to wear masks may be eligible for reasonable accommodations at your medical spa. To learn more about the Americans with Disabilities Act (ADA) and how it may apply to your business, please see resources here and here.