Since the start of the COVID-19 pandemic, many businesses have struggled to come up with plans on how they can safely reopen. This has been of particular concern in the customer service and hospitality industries, as the nature of their business requires them to frequently meet with customers in person. What many businesses thought to be a reasonable request, asking customers to wear masks, has been a topic of ongoing debate across the country. This has led many to wonder if businesses asking patrons why they aren’t wearing a mask is a HIPAA violation. Is asking someone why they aren’t wearing a mask a HIPAA violation?

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Stephen Sullivan, an attorney that specializes in healthcare law states, “Accordingly, HIPAA nor any other law prevents a premises owner from asking reasonable questions about a customer’s health condition in order to keep his staff and others safe. In fact, during the pendency of a pandemic with an Executive Order requiring a mask, the business owners are well within their rights and may have a duty to exclude anyone who is not wearing a mask or otherwise presents a risk of harm to others.” 

Why Isn’t This a HIPAA Violation?

The Health Insurance Portability and Accountability Act (HIPAA) regulates organizations that work with protected health information (PHI). These organizations fall under two categories, covered entities (involved in treatment, payment, or healthcare operations) and business associates (organizations that are contracted by covered entities to perform a service).

Since a regular business (department store, grocery store, restaurant, etc.) does not work with PHI as part of their job function, they do not have to comply with HIPAA law, and therefore do not not fall under the Department of Health and Human Services (HHS) jurisdiction. As such, they are permitted to ask customers why they are not wearing a mask (even if they have a medical condition that prevents them from wearing a mask). Businesses can even refuse to serve customers that aren’t wearing a mask without fear of violating the Civil Rights Act or the Americans with Disabilities Act.

Sullivan furthers, “There is no civil right to do as you chose, if by doing so you present a risk of harm which infringes on the rights of others. The Civil Rights Act prevents discrimination based on race, religion, sex and national origin. There is no protection for legitimate discrimination by business owners against customers who for health or any other reason will not mask.”

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