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Can a business legally kick you out for refusing to wear a mask? Probably, and here's why.

A widely-circulated video of a Costco employee telling a customer to wear a mask illustrates the conflict happening everywhere between retail workers and customers who refuse to wear masks.

Costco masks
  • Business Insider spoke to employment and corporate policy lawyer Aaron Goldstein and James Biscone, a personal injury and workers' compensation attorney, about what rights businesses and customers have in the case of such a conflict.
  • Goldstein and Biscone both told Business Insider that businesses generally have the right to refuse service to customers who violate their mask-wearing policy, as long as that policy does not discriminate on the basis of disability.
  • Goldstein emphasized that the "First Amendment rights" touted by many customers who refuse to wear masks don't actually apply to private enterprises.
  • And because masks are recommended or required by public health officials in most places, companies are on an even stronger footing to deny service to someone who violates a mask-wearing policy.
  • Visit Business Insider's homepage for more stories .
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Costco's policy requiring shoppers to wear masks has enraged many of its customers , culminating in a widely-circulated video of a confrontation between a Costco employee and a customer who refused to wear a mask. But as America continues to reopen, many stores and restaurants are similarly requiring customers to wear masks.

Critics of this policy say it violates First Amendment rights. However, the First Amendment, which protects freedom of religion, speech, assembly, press, and grants citizens the right to petition the government, does not apply to private residences or private enterprises.

Business Insider spoke to lawyer Aaron Goldstein, a partner at Dorsey & Whitney LLP specializing in employment and corporate policy, and James Biscone, a personal injury and workers' compensation attorney at Johnson & Biscone, about whether businesses have the legal power to eject customers who don't comply with mask-wearing policies.

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"Absent some kind of discrimination claim, the company is free to tell patrons, 'Either wear a mask, or you're not allowed in,'" Goldstein said. "A mask situation is like the no shirt, no shoes, no service policy we see everywhere."

"Businesses have a right to require masks and to refuse entry or service to an individual who is not wearing a mask," Biscone said. "Think of the requirement to wear a mask as the same as banning smoking inside of a store. The patron has a right to smoke, but a business can restrict that right inside of its walls for the safety, comfort, and peace of mind of other people."

However, Biscone emphasized that there are exceptions to this rule. A customer who is physically unable to wear a mask would be "difficult to turn away" because of the Americans with Disabilities Act, which prohibits discrimination to people with disabilities in many areas of public life, including retail stores. But since masks are a safety measure designed to keep others safe, Biscone says that mask requirements are still "probably not" an unreasonable accommodation request in this case.

Goldstein said that he is not aware of any state laws that would prohibit companies from implementing a mask-wearing policy and that in current circumstances, companies are on stronger footing than they normally would be as masks are a matter of public safety.

"If someone decided to sue, it's not clear what their damages would be," Goldstein said. "They would have to bring a lawsuit specifically allowing them to patronize the store without wearing a mask."

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In order to be legally exempt from wearing a mask in a business that requires it, a customer must be physically incapable of wearing a mask due to a disability or illness. In this case, a customer can sue the business for the right to enter without a mask. Many stores exempt children and those who are physically unable to wear masks from mask requirements.

If a customer chooses to defy a mask-wearing policy for anything other than physical incapability, the business has the legal right to eject them from the premises. Goldstein recommends that businesses should call law enforcement when they encounter a customer who refuses to comply with their mask-wearing policy.

However, Biscone said that even though businesses may have a legal right to remove a customer from its premises for violating its policy, actually enforcing that policy may be harder.

"A business can refuse service to a patron, but a true enforcement and removal from the premises would be difficult. I anticipate this is where lawsuits will be filed and state courts will have to decide where the line is drawn between the rights of a business and an individual's personal rights," Biscone said.

Biscone said that businesses must also follow state and local laws, which change frequently. And businesses with a mask-wearing policy should communicate that policy clearly to its customers.

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Goldstein emphasized that a common misconception that seems to be prevalent about the First Amendment is that it applies to private parties as well as government.

"It's always fascinating to me to see how misinterpreted and misquoted the law gets in situations like this. People have this knee-jerk assumption about what their 'rights' must be, and they aggressively purport those rights and aggressively 'defend' them, but they don't even exist," Goldstein said.

Retail workers bear the brunt of anger and violence from customers who refuse to wear masks. In addition to the confrontation recorded in the infamous Costco video, there have been incidents at countless other stores. Earlier this month, a Family Dollar security guard in Michigan was shot and killed after telling a customer she needed to wear a mask in the store, and a customer opened fire at an Aurora, Colorado, Waffle House after a cook told him to wear a mask .

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SEE ALSO: The restaurant you just ordered delivery from may not actually exist here's why.

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