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Can McMaster Mandate The Use of Face Masks at Businesses? A Local Attorney Explains

MYRTLE BEACH, S.C. (WMBF) – Following a rise in COVID-19 cases recently in the Palmetto State, many residents are wondering if Gov. Henry McMaster should require restaurant employees to wear face masks.

Right now, McMaster is leaving it up to restaurant industries to enforce guidelines during the pandemic, including mandating face masks.

According to lawyers at Goldfinch Winslow, LLC in Murrels Inlet, there are legal reasons as to why the governor may not be considering the mandate.

Attorney Thomas William Winslow says the governor has certain powers given to him under the executive branch to enforce laws created by the legislative branch, but because of the pandemic, there wasn’t enough time for the legislative body to respond.

Winslow feels because the current level of emergency isn’t clearly defined by the state, McMaster mandating more laws becomes a bit more complicated and may fall in the legislative powers.

“By the governor mandating orders, that’s [essentially] creating laws,” Winslow said. “So there’s a question about separation of powers for the Constitution, not just the U.S., but for the state of South Carolina.”

Winslow noted businesses have legal rights to mandate certain safety decisions as long as it fits two criteria: the actions are legal and they don’t discriminate.

“If a business says you can wear a mask and says [to another individual] you don’t have to wear a mask, that’s not proper,” Winslow said. “But as long as they’re doing it equal to everybody, it’s not illegal. That’s the ability to be private, that’s the beauty of this country.”

Carson Richardson is the assistant manager for Creek Ratz in Murrells Inlet. She says the restaurant is doing everything possible to keep the establishment safe for guests, including limiting occupancy and keeping tables six-feet apart. As far as their policy on masks, they’re leaving it up to the individuals to decide.

“We aren’t wearing gloves and masks when interacting with the customers, but we are wearing gloves when prepping food, drinks, anything of that sort,” Richardson said. “There’s no one to check in with to make sure we’re doing things totally right because no one knows what’s truly right. Do we go across the board and wear masks? Do we leave it up to people?”

Winslow says mandating masks is a dilemma many businesses are trying to figure out.

“There are liability risks for forcing someone wearing a mask and not wearing a mask,” Winslow said.

Winslow added there are legal standards businesses have to follow if they choose to mandate masks, and the legislative branch should consider a law to help guide safe business practices during the pandemic.

“It’s been four months,” Winslow said. “Why has the legislature not come up with a bill or policies of some kind stating this is what we are gonna do?”

This notion is leaving businesses like the Lazy Surfer Creamery to enforce safety procedures for themselves.

In light of the pandemic, the ice cream business has stopped scooping ice cream and moved to serving pre-packaged gourmet options. And the safety guidelines their enforcing for employees is wearing gloves.

“We are wearing plastic gloves,” said John Hutton, an employee at Lazy Surfer Creamery. We’re conscious of what’s going on and we’re taking precautions to do it the right way.”

“This is so unknown and we’re all just tying to do the best we can we’re trying to make the right decisions,” Richardson said.

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