“If a person comes without a mask, he cannot be refused service”: expert comment

Medical, protective and even carnival masks — what should I wear when going to a store?

Russian President Vladimir Putin announced a gradual exit from “self-isolation”, and the regions hastened to lift restrictions. In reality, restrictions on movement really began to be cancelled, but instead they introduced new ones — now everyone (both sick and healthy) must wear masks and even gloves. However, some have been wearing masks before, but voluntarily and most often in the presence of signs of SARS. The WHO also claims that wearing masks for healthy people does not make sense. However, the introduction of the “mask regime” left people with heart diseases, allergy sufferers and asthmatics alone with health problems and added another risk to the risk of getting a fine — refusal to serve in stores in the absence of a mask. Is it legal?

A cloth or RPE?

In order for the conversation to be substantive, you should define the concepts. What exactly must citizens wear in stores? Let's take an example of the Decree of the Cabinet of Ministers of the Republic of Tatarstan dated May 10, 2020 No. 374, paragraph 8 of which refers to personal respiratory protective equipment (masks, respirators).

However, is every mask a means of personal protection? To answer this question, we refer to the system of occupational safety standards, namely GOST R 12.4.233-2012 (EN 132:1998). This document, introduced in 2013, sets out the terms in order to avoid ambiguity. GOST defines personal respiratory protective equipment (RPE) as a wearable technical device that protects the respiratory system from occupational risk factors. Thus, not every rag on the face falls under the concept of RPE, which the new documents require to wear from May 12.

The abbreviation for RPD is unknown to many, the concept of “medical mask” is more known to people. They were bought up en masse in pharmacies, and now they are happy to buy them in regular stores when they see a blue product on elastic bands on sale. The term “medical mask” is fixed in another document, namely in GOST R 58396-2019, and is defined as a medical device that covers the nose and mouth and provides a barrier to minimize direct transmission of infectious agents between staff and patient.

There is a difference between the concepts of RPE and medical mask. If the former is intended to protect its bearer, the latter is intended to protect others. A careful reader of the decree will notice that the document itself contains ambiguity: it is unclear whether the Cabinet of Ministers implies that RPE and mask, respirator are synonymous? Or do they mean that these concepts are different and any of them can be applied? There is no answer to this question, but according to state standards, RPE is not a medical mask.

However, there is a much more significant problem. In stores, and often pharmacies, it is difficult to find not only RPE but also medical masks. It would seem that such a common thing, but no. What, then, is being sold everywhere? This question is answered by the label on the packaging, which in most cases reads “non-medical, hygienic mask”. This product does not have a protective function against infection in the respiratory tract. The same can be said about self-made masks or ordered at the tailor's. Thus, probably, a lot of people unknowingly violate the government decree by putting a certain cloth on their face or even wrapping a scarf around them, sincerely believing that they have fulfilled the requirements and this is RPE.

Protection that is either expensive or questionable

Let's say someone understands the terminology and even orders RPE, the average price on the Internet for which fluctuates at the level of 700 rubles. But many do not have the opportunity to provide themselves with either an RPE or a mask. They can be understood, and, moreover, the state is on their side. The rules of conduct under a high-alert regime, established by Government Decree No. 417, say that citizens are required to use personal protective equipment and other property (if it is provided by executive authorities of the Russian Federation, local governments and organizations) when receiving appropriate instructions from officials.

However, no PPE is issued en masse to residents of those regions where the “mask regime” has been introduced. But it is, to put it mildly, expensive to spend regularly 700 rubles for a disposable respirator for the sake of going for food for the majority in the current economic conditions. Unfortunately, the use of even disposable hygiene masks in such conditions is expensive — after all, you need to change them every 2 hours.

Buying in a store without a mask — is it real?

If a person has forgotten his RPE at home or simply does not have money for it, does this mean that the store will refuse to serve them? Surprisingly, no. In this case, the Civil Code is on the side of the buyer and prohibits giving preference to someone depending on their financial situation, appearance, social status or the presence of a mask.

Part 3 of article 426 of the Civil Code prohibits the refusal of a person engaged in business activities to conclude a public contract if it is possible to provide the consumer with the appropriate goods, services, or perform the appropriate work for him.

According to part 5 of article 14.8 of the Administrative Code, refusal to provide goods (performance of works, rendering of services) or access to goods (works, services) to the consumer for reasons related to his health, disability or age, entails the imposition of an administrative fine on officials in the amount of thirty thousand to fifty thousand rubles; on legal entities — from three hundred thousand to five hundred thousand rubles.

Thus, if before going to the store, the citizen has not bought an RPE, the state has not provided him with it and/or he has no financial possibility to buy it, then he is eligible to make a purchase in the store. At the same time, if the store insists on purchasing a mask for making a purchase, then the organization also violates the Law on consumer protection, namely paragraph 2 of article 16, which prohibits making the purchase of certain goods (works, services) mandatory for the purchase of other goods.

There is a paradoxical situation when the resolution of the regional cabinet of ministers prohibits entry and being without PPE in a store, but if a person still enters there, then the federal law prohibits him from not serving.

What should I do if the customer does not sell the product in a store because of to the absence of a mask on his face? Eduard Kobyakov, a member of the Association of Lawyers of Russia, has developed a memo for customers who want to buy food and non-food products without using masks and gloves. In case of refusal, it is recommended to make a video recording of such refusal, informing in the video the date, time, name and location of the store, the name and position of the employee who refuses to sell. The video data should then be attached to the complaint to Rospotrebnadzor or the Prosecutor's office. He also advises them to leave an entry in the complaint book, be sure to specify your details and phone number for communication. He also advises using the photo of the left record and the book itself when contacting Rospotrebnadzor or the Prosecutor's office.

However, in practice, it is often sufficient to verbally declare that the cashier's refusal violates federal laws (which are the Civil Code, Administrative Code of the Russian Federation, and the Law on Consumer Protection), and call the store manager. In such cases, managers have to decide whether they want to get multiple penalties for refusing customer service.

Everyone can get a fine

In light of this conversation, an interesting fact was the publication on May 20 of a newsletter on the website of Rospotrebnadzor 'On the legal aspects of refusing consumers access to retail facilities without personal protective equipment (masks) in the event of their mandatory use”. According to it, the actions of economic entities engaged in permitted trade activities aimed at non-violent hindrance in the conditions of the “mask regime” to citizens-consumers in visiting shopping facilities without masks and accessing goods for the purpose of purchasing them, can not and should not be considered as actions that infringe (violate) the rights of consumers. With this phrase, Rospotrebnadzor tries to convey that it is quite legal to prohibit entry to the store. However, this does not mean that it will be legal to refuse service to a customer who has already visited the store.

It should be noted that only normative legal acts have legal force, but not the information provided in the form of a bulletin. Unfortunately, an inattentive reading of them can mislead store owners. The same effect is claimed by the Methodological recommendations of the ministry of industry and trade of May 11, 2020, which inform that trade organizations have the right to refuse service to a visitor at the cash register. However, federal and ordinary laws must be implemented first, and only then decrees, regulations, and even recommendations, if they do not contradict the laws.

Thus, if a person comes to the store without a mask, they can not be refused service. If the buyer's rights are violated, they can defend them not only verbally but also call the police to register the offense. In turn, the store can also call law enforcement officers but only in order for them to draw up a protocol on the absence of a mask by the buyer. But the cashier will still have to sell the product, otherwise he will also violate the law.