Saturday 28 May 2022

Businesses can deny entry to customers without a mask

Decree did not change power protected by freedom of trade established in the Constitution. It cannot be considered a discriminatory measure.

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28 May 2022 - At The Banks - BCCR

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QCOSTARICA -Any business establishment, whether it is a restaurant, a clothing store, cinema, bar, or hardware store, can reserve the right of admission with those customers who do not wear a mask when entering their premises, despite the decree published on May 11 that eliminates the mandatory nature of face masks in closed places.

Experts say businesses can require the use of the mask as long as it is not discriminatory and the consumer is advised of the requirement

This is the opinion of specialized lawyers, such as Marvin Carvajal, whose expertise is constitutional law, for whom the decree of the government of Rodrigo Chaves only protects the freedom of the person to choose whether or not to put on the mask, but does not eliminate the right of business owners to reserve admission to their establishments, in this case, for example, prevent the entry of people without a mask in order to protect the health of their other customers and even the workers themselves.

Carvajal indicated that merchants have “perfect legitimacy” to apply this restriction based on the freedom of trade that Article 46 of Costa Rica’s Constitution protects and it would not be a discriminatory measure because it is not contrary to human dignity, which is what Article 33 limits.

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“Discrimination would be that the client is not allowed to enter because of their skin color or nationality,” the expert pointed out, noting that businesses that do not request a mask as an entry requirement could even risk lawsuits if for that reason contagions are generated or to deaths from covid-19.

“The business could say that why is it going to risk a lawsuit if it can establish basic health rules such as the requirement of a mask. An entrepreneur cannot be asked not to act within the possibilities that he has to safeguard his business and the health of his clientele and staff,” he added.

For his part, constitutionalist Esteban Alfaro and labor lawyer María Marta Salazar, speaking to La Nacion, agree that there is also a recent vote of the Constitutional Court or Sala IV, as it is often referred to, that is very clear in that power of the merchants.

Resolution 1099-2022 of January 14, states that: “Any commercial establishment or private association has the possibility of imposing its admission rules, as long as they are not openly discriminatory, unjustified or disproportionate.”

Alfaro explained that this measure would not be discriminatory as long as it is applied to all clients, without any other distinction involved.

“The only thing that could not be done is that the business applies it one day and not another day, or that it does not apply it to friends and with strangers, yes, then it would be different,” Alfaro pointed out.

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Salazar, for her part, recalled that the decree declaring a national emergency due to the pandemic is still in force and, until very recently the mandatory use of the mask was also still in force, so at this time it would not be an unjustified measure. or disproportionate.

“The only difference with the new decree is that before, businesses were obliged to ask for the mask, now they are not obliged but they have complete power to continue doing so, because they can establish it as an internal business policy in occupational health,” Salazar added.

This is found Article 32 of Law No. 7472 that gives the consumer “protection against the risks that may affect their health.”

Constitutional lawyer Rubén Hernández also considers that merchants can deny customers who do not wear a mask entry to their business, in accordance with article 26 of the Constitution.

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“Just as they do not allow naked people to enter, they can apply the same criteria to not admit people without a mask. It applies because it is a meeting place and the one who organizes the meeting has the right of admission, as long as he/she does not discriminate, such as everyone wearing a mask and only some entering,” Hernández explained.

Experts indicate that the most important thing to apply this measure is that merchants place some notice outside their premises so that customers are aware of the policy before entering.

Even so, the magistrates of the Sala IV pointed out in resolution No. 00966 of February 13, 1998: “When admission requirements are required, they must be displayed in a place visible to all, and outside the business, so that prior knowledge of them, and people know what to expect,” says the decision.

For Eric Briones, a doctor in Labor Law, demanding the use of a mask from consumers is also “a matter of health and life”, while the labor activist Paola Gutiérrez commented that it is worth remembering that this Thursday the Ministry of Labor even issued a statement recalling that work centers have the power to take care of the health of their employees.

“The Ministerio de Trabajo y Seguridad Social (MTSS) – Ministry of Labor-  clarifies that in accordance with current regulations on labor matters and the Constitution, specifically in article 66, all employers must adopt the necessary measures in the workplace to guarantee the safety and health of its employees and collaborators.

“This obligation to ensure hygiene and safety measures in the workplace, with the support of the occupational health and safety committees of each one, allows the incorporation of mandatory conditions within the companies, which are part of the strategies to prevent contagious diseases in the workplace”, said the MRSS in its official communication.

 

 

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