Wegmans has been fined $1,000 by the Cayuga County Board of Health for its second violation of New York's mask mandate during the COVID-19 pandemic.
The fine is the result of a hearing in December after a Cayuga County Health Department inspector observed a violation at Wegmans in Auburn. According to the hearing officer's report, a customer was not wearing a face mask while less than six feet away of other people in a checkout line at the store.
A manager at the Wegmans in Auburn testified that the supermarket chain has a policy that allows customers to "enter the store without a face covering, to shop and cash out without a face covering, and not compel their removal."
Wegmans addressed its face covering policy in November after its initial violation in Cayuga County garnered national attention. The company claims that there is 99% compliance with the mask mandate in its stores.
"While we would love for that to be 100%, we have to balance that 1% with the risks of asking our employees to confront unmasked customers," Wegmans wrote on its website's COVID-19 page.
Dan Purcell, an attorney representing Wegmans, appeared at the Cayuga County Board of Health meeting Tuesday and defended the company's policy. Despite commentary about Wegmans' stance, he says they are taking customer and employee safety seriously. He added that it's "not true" Wegmans allows customers to shop "however they want."
Repeating Wegmans' claim that there is 99% compliance with the mask mandate, Purcell said the issue is what happens in the rare instances that customers don't comply.
"What it appears some would have us do is confront and physically try to force the person to leave the store," he said. "And that is a line Wegmans has decided it can't cross."
Purcell argued that the policy is consistent with Centers for Disease Control and Prevention guidance. In September, the CDC released recommendations on how to avoid workplace violence due to COVID-19. In the recommendations, the agency encourages businesses to avoid arguments with customers "if they make threats or become violent." Businesses are also discouraged from "forcing anyone who appears upset or violent" to follow COVID-19 guidelines.
Another point raised by Purcell is that it's unknown whether the customer not wearing a mask was medically capable of wearing one. The state directive does provide an exception for people who aren't able to wear a mask due to a medical condition.
During questioning from health board members, Purcell went further. He said Wegmans believes the executive orders requiring masks in public settings have "holes in it." He also stated that because it's unknown whether the customer is exempt from the mandate due to a medical condition, a violation can't be proven.
In response to a question about how Wegmans would address a situation involving a customer who entered the store without a shirt or shoes, Purcell said: "I think you would have to agree the reaction of somebody in 2020 and 2021 when you tell them to put a mask on is far different than if you told someone to put shoes on."
Before the board approved the fine, there was a lengthy discussion among its members and Rich Graham, the chief assistant county attorney. Graham told the board that Wegmans has a policy to not confront customers, but that stance puts the company at odds with the state orders.
"The regulation itself puts that burden, that responsibility, on the store owner," Graham said, adding that he thinks Wegmans may pursue legal action against the state over the mask mandate.
Ralph Battista, a health board member, emphasized the need for consistency in enforcement. Wegmans is one of more than 30 Cayuga County businesses that have been fined for violating the mask orders, one of which encourages businesses to enforce the mask mandate and deny admittance to patrons who aren't wearing face coverings.
Cayuga County Legislator Elane Daly asked about Purcell's argument regarding whether the customer had a medical condition that would allow them to not wear a mask. If Wegmans had approached the customer and learned of a medical condition that would exempt them from the mandate, then Graham said it could've changed the outcome. But he disagreed with Purcell's assertion that determining whether the customer is medically unable to wear a mask is a precondition to finding a violation.
"They know what the rules are and they have made a conscious choice to not comply with the regulation the way it's written," Graham said.
In addition to the fine, the hearing officer's recommendations, which were accepted, include requiring Wegmans to amend its store policy so it's consistent with the state emergency regulations. It also encourages the health board to adopt a policy allowing for businesses to be notified of mask-related violations immediately after inspections.
In other news:
• A handful of Cayuga County businesses were fined for first-time violations of the state mask directive.
Auburn Bottle Return, BJ's Wholesale Club in Sennett, NAPA Auto Parts in Moravia and Tops Markets in Auburn paid $50 fine for violating the executive order. At each of the businesses, an inspector observed either customers or employees not wearing face coverings.