ADA Does Not Provide Blanket Exemption From Face Mask Requirements

August 30, 2020

The claim: The Americans with Disabilities Act exempts people from face mask requirements imposed by governments and retailers
Face mask use has been a source of confusion and contention amid the COVID-19 pandemic. As new outbreaks of the coronavirus grow across the country, some anti-mask activists have claimed that policies mandating mask-wearing infringe on disability rights.

“According to ADA Mask Not Required Anywhere in America!” reads one flyer shared hundreds of times on Facebook.

The graphic cites the Americans with Disabilities Act’s requirement for “reasonable accommodation to anyone who cannot wear a mask due a medical condition,” as explanation for why mask wearing is optional under the law.

Similar images and claims have been circulating online for weeks. Images of laminated “Face Mask Exempt Cards” from the fictitious “Freedom to Breath Agency” went viral after some attempted to use the cards to enter stores across the country.

Another viral incident occurred at a California Trader Joe’s, where a woman yelled that she “Had a breathing problem” at store managers requesting that she leave for violating the state’s mask requirement. Others claim businesses that refuse to allow nonmask wearers entry are punishable with fines and other legal action.

Local and state governments, in-person and gig economy businesses all have the right to require the wearing of face masks from customers.

The Americans with Disabilities Act does require disabled people to be “reasonably accommodated” when working with employers, public businesses and the government. These accommodations, though, do not allow for simple exemptions from mask-wearing without replacing it with another measure in line with public health requirements.

Government policy on the ADA and COVID-19

“The ADA does not provide a blanket exemption to people with disabilities from complying with legitimate safety requirements necessary for safe operations,” the Department of Justice Department, which helps enforce the ADA, said in a June 30 press release.

The denunciation follows up on an earlier statement in which the agency said it had “been made aware of postings or flyers on the internet regarding the ADA and the use of face masks due to the COVID-19 pandemic, many of which include the Department of Justice’s seal.”

“These postings were not issued by the Department and are not endorsed by the Department,” the agency emphasized.

The U.S. Equal Employment Opportunity Commission, which helps enforce disability rights in employment, has issued guidelines clarifying how businesses can follow public health measures while still accommodating disabled employees.

Both the DOJ and EEOC have emphasized that enforcement of the ADA will continue amid the pandemic, but also underscore the ADA’s caveat that a disabled person’s request cannot cause “undue hardship” to the employer or fundamentally change the overall operation.

“If a particular accommodation poses an undue hardship, employers and employees should work together to determine if there may be an alternative that could be provided that does not pose such problems,” the EEOC wrote in its latest guidelines on disability rights and COVID-19.

While new guidelines have been crafted given the unprecedented nature of the pandemic, the underlying law of the ADA has not changed. That law has never allowed for blanket exemptions of disabled people from anything.

The ADA and reasonable accommodations

The ADA is an anti-discrimination law meant to provide similar legal protections to disabled Americans as other groups protected under federal civil rights law because of their color, race, sex, religion and national origin.

“When you offer something to the public – a job, a restaurant – it’s not that people with disabilities are the first in line; it’s that they can get in line,” Peter Blanck, a professor of disability law at Syracuse University, told USA TODAY.

“You must provide reasonable accommodations to allow people to participate, though there is a ceiling to make sure you aren’t causing others undue burden.”

“A person must have a legally recognized disability to enjoy the protections of the ADA,” professor Jessica Roberts, the director of the Health Law & Policy Institute at the University of Houston, told USA TODAY. “So, the individual would have to establish that she is a person with a disability under the law, which has specific legal standards and is not always an easy or straightforward thing to do.”

The ADA doesn’t protect everyone

What constitutes a disability is highly case-specific, according to Jasmine Harris, a professor law at University of California, Davis.

“How the law is currently getting described is that everybody has protections under the ADA, and that is certainly not true,” Harris said. “For disability rights to be meaningful, individual assessment and analysis was made key to the law.”

This means that there is no blanket protection the ADA provides people; each disabled person receives unique accommodations according to their needs, contradicting the central claim of the viral posts and cards.

“And to add to the misinformation, there is no right not to be asked about your health conditions. HIPAA covers only a limited number of entities, which does not include employers or businesses,” Roberts also told USA TODAY. HIPAA is the Health Insurance Portability and Accountability Act.

Coronavirus and ‘direct threat’

Even if a person could identify their disability and prove that not wearing a mask without any other precaution was a reasonable request, “the business could still turn that person away based on the direct threat” that they posed to others, according to Roberts.

A “direct threat” under the ADA is any substantial risk to the health and safety a disabled person poses to others, which cannot be countered with reasonable accommodations.

The standard is normally cited in employer-employee relationships, but experts and regulators agree that COVID-19 poses a threat to businesses when interacting with customers. Businesses also have plenty of legal precedent for protecting themselves in the name of public health.

“Remember no shirt, no shoes, no service? What was the legal basis for that? Yes, there have may been some bias against surfers in the state of California, but fundamentally it was about health,” Harris explained.

“Basically, only an individual with a disability who can show that wearing a mask would significantly interfere with their ability to breathe or some other necessary function could claim that an exemption from a mask requirement would constitute a reasonable accommodation,” Stephen Befort, a professor at the University of Minnesota Law School, told USA TODAY.

One such example may include Air Force veteran Israel del Toro, who was mistakenly barred from entering a commissary on Peterson Air Force Base.

“I don’t have ears, I can’t loop them,” del Toro told KKTV, also citing his breathing condition as another issue. “Trust us, if we could, we would wear masks,” he said, referring to disabled veterans and other vulnerable populations.

The Air Force’s mistake in the del Toro case was not providing any accommodation that would allow him to follow the spirit of the public health order, instead kicking del Toro out of the store.

“Say you have a person with an extraordinary respiratory risk and putting a mask on them would give them trouble breathing. Is there not a way to give them an accommodation that can align with the spirit of the mask? In my view, yes: a face shield or perhaps curbside pickup,” Blanck said of the scenario.

Disabled Americans and COVID-19

Many disabled people, who are at especially high risk of experiencing severe cases of COVID-19, are largely adopting measures to avoid in-person interaction entirely, opting for the delivery of groceries and other goods rather than risk exposure.

“In my experience, people with disabilities are not the ones rushing to stores looking for accommodations because they know they are the ones who are most likely to get COVID-19,” Doron Dorfman, a professor of law at Syracuse University who has researched misconceptions of disability rights, told USA TODAY.

“Often, disabled people will ask for other accommodations like curbside pickup or delivery for their groceries and other needs,” he said.

“I think this co-optation of disabilities is dangerous for the disability rights movement and physical health of disabled people,” said Harris, from UC Davis

“There’s something of a pendulum here,” she said of disability rights during the pandemic. “At first, there was complete disregard for the lives of disabled people with ventilator rationing policies that were blatantly discriminatory against disabled people.”

“Now, people are saying, ‘oh gosh it’s a disability, we can’t touch it!’ and a lot of that has to do with people’s lack of understanding about the nuance and complexity of who has a disability in society.”

In addition to greater complications from the virus, advocates have warned that it’s often harder for disabled Americans to receive information about COVID-19, and that the social and economic fallout from the coronavirus is disproportionately affecting disabled populations.

The Americans with Disabilities Act does not allow anyone, disabled or otherwise, to ignore mask requirements without other precautions being taken. The ADA does not offer blanket protections; accommodations are specific to individuals. Viral claims stating otherwise are not based in any government guidance or law and have been denounced by the Justice Department.