A business’ refusal to serve people based on their race, political beliefs, religion and gender affiliation is considered strictly off limits – even illegal – but what about the denial of service to medical professionals and first responders who have had recent contact with people who have tested positive for COVID-19?
Dayle Morningstar Laird was shocked to learn she would not be given her scheduled pedicure Wednesday afternoon at Spaaah Shop & Day Spa in Durango after she answered the spa’s questionnaire saying she had recent contacts with people who have tested positive for the pathogen.
Morningstar Laird, a paramedic based in Pagosa Springs with the Upper San Juan Basin Health District, fairly frequently transports COVID-19 patients from Pagosa Springs to Mercy Regional Medical Center in Durango.
Antoinette Whidden, co-owner of the Spaaah Shop, said denial of service to people who have had recent contact with people testing positive for COVID-19 was and remains the proper procedure for her employees to follow. She said her employee’s denial of service to Morningstar Laird or anyone with recent contact with COVID-19-positive patients is “common sense.”
“As you can understand, for a spa, where our services are up close and personal, you can’t take chances. ... I can’t expose my employees. It’s just common sense,” she said. “If we were to expose our employees, then we would be required to shut down. It doesn’t matter – if they’re a paramedic, or if they’re a school teacher, or if they’re a housewife or whatever they are – it doesn’t matter. If they answer ‘yes’ to that question, then it is our job, it’s our responsibility to make sure that our customers in the back as well as our employees are not exposed. I mean, it sucks. I would love to be able to give them a service. But, you know, in this day and age, you just can’t. You’ve got to be careful.”
Claire Ninde, director of communications with San Juan Basin Public Health, said the state requires personal service businesses to screen customers for COVID-19 symptoms when receiving a high-contact service like a massage, haircut or spa treatment, but they don’t have to screen “for past exposures.”
“Businesses must follow required state guidance to protect their employees and customers according to their industry standards. SJBPH has not added to these requirements or provided other detailed recommendations, aside from the self-certification requirement for establishments in La Plata County,” Ninde said in an email to The Durango Herald.
Guidelines for personal service providers to follow while operating in a COVID-19 environment are spelled out on the Colorado Department of Public Health and Environment’s website, she said.
“EMTs and other health care providers use elevated protective strategies and equipment when interacting with potential or confirmed COVID-19 patients, and SJBPH does not consider them ‘exposed’ or ‘close contacts’ as long as these procedures are followed,” Ninde said.
SJBPH, she said, realizes complex challenges faced by businesses and customers as they navigate new situations posed by COVID-19.
“We acknowledge that most businesses are doing their best to protect the health of both their employees and customers. This includes self-certification using our online infection-control checklist and continually practicing things like physical distancing, face covering and elevated sanitization,” she said. “We also know that most customers and even patrons are acting in a responsible way by monitoring their own symptoms, wearing face coverings and following businesses’ requirements.”
SJBPH’s recommendation to personal service businesses like the Spaaah Shop, Ninde said, would be that they follow state guidance “which is specifically: conduct symptoms check for all customers of services with close personal contact and decline to provide services to anyone who has symptoms.”
Morningstar Laird said paramedics with Upper San Juan Basin Health are required to wear personal protective equipment from head to toe. After transport she said, “paramedics clean like crazy,” are required to shower and the ambulance is flooded with ultraviolet light to disinfect the vehicle – all procedures she believes any reasonable person would take into account before denying service to a paramedic.
“The precautions we take at work are very, very extreme, so I’m not worried about giving it to other people,” she said. “But I filled out the form correctly, and before I even filled out the rest of the questionnaire, she said, ‘You have been in contact.’ And I said, ‘Well, yes, I’m a paramedic.’ And she started yelling at me and told me that I had to get out.”
Wade Whidden, co-owner of the Spaaah Shop, said if the business is responsible for a confirmed case of COVID-19 it will be required to close for 14 days, and the business is put in a tough place because it looks bad if the spa is overly cautious by turning away clients or if it is identified as a business responsible for a COVID-19 transmission.
“What would you suggest we do?” he said. “Do you think we want to turn people away that have exposure to COVID? Our business is down 50% from last year. The last thing we want to do is turn anybody away for a service. But we cannot put our employees at risk. We can’t put our back staff at risk. I know it’s a tough situation. I know it’s brutal to have to turn anybody away.”
Charles Spence, an attorney and a partner in the Durango firm Maynes, Bradford, Shipps and Sheftel, said litigation for small businesses based on COVID-19 incidents is such a recent development, it is too early to say whether the Whiddens are acting too excessively in their denial of service to Morningstar Laird.
Several class-action lawsuits have been filed, but they have yet to be adjudicated, he said.
“The liability exposure is somewhat unclear at this point,” he said. “I don’t think we’ve seen the true fallout from all of that yet. And it’s going to be pretty dire in some cases. They’re trying to protect themselves from these possible claims. It gets difficult, and I don’t know if there’s a clear answer right now.”