Dive Brief:

• A Pennsylvania federal judge denied a preliminary injunction against Giant Eagle's enforcement of its face-covering mandate on Friday after a shopper argued that he’s entitled to an accommodation under the Americans with Disabilities Act (ADA), Law360 reported. The judge said the shopper hasn’t shown sufficient evidence of discrimination or reasons for why he wouldn’t be able to wear a face shield or order his groceries online.
• The shopper, Josiah Kostek, said in his suit that the Giant Eagle store in Oil City, Pennsylvania, turned him away twice in May for refusing to wear a mask, claiming it’s difficult for him to breathe with a mask on and that he suffers from anxiety and post-traumatic stress disorder. 
• Kostek’s case is one of dozens of cases against Giant Eagle over claims of medical issues preventing mask-wearing that the federal court has consolidated. The judge denied Giant Eagle’s motion to dismiss the cases, meaning the grocery store chain could face a trial. 

Dive Insight:

The lawsuits against Giant Eagle come at a time when grocers are grappling with their face covering policies during the coronavirus pandemic. 

Giant Eagle defended its mask policy, saying in a brief to the court that it didn't have to make accommodations posing a "direct threat" to its staff and customers' health, Law360 reported. The Pennsylvania federal judge noted in her ruling that Kostek had not adequately shown his disabilities prevented him from wearing a face covering, and pointed to social media posts indicating he was able to able to wear a mask. 

The lawyer representing Kostek and the other plaintiffs told the publication that work is continuing on all of the cases and indicated they will proceed to a jury trial.

When it comes to the ADA, Michael D. Wong, a partner at SmithAmundsen, told HR Dive in June that the law affects consumers and employees differently, requiring a more interactive process for the latter. He recommends businesses ask a customer who doesn’t want to wear a mask if they have a disability, and if so work to accommodate that restriction, providing the example of a grocery store offering curbside pickup.

Giant Eagle is among the retailers, including Walmart and Kroger, that implemented face-covering policies to curb the spread of coronavirus. In July, Walmart created a “health ambassador” role to boost mask-wearing by shoppers by having designated employees greet them at the door. 

Grocery store employees enforcing mask policies face shoppers who have medical or religious reasons to not wear face coverings along with non-compliant shoppers who don’t want to wear a mask because of personal preference. Some companies, including Walmart, have turned to de-escalation trainings for employees on how to interact with customers who refuse to wear masks.  

Retailers are working to balance worker safety with shopper demands. Following thousands of Instacart workers demanding more protections at the end of March, the company started to give out health and safety kits with face masks, hand sanitizer and thermometers to its full-service shoppers in April.