Some Are Using Disability Law to Oppose Face Mask Requirements

(This article was originally published May 29, 2020)

As many jurisdictions and businesses require store customers to wear face masks to prevent the spread of the COVID-19 coronavirus, a legal theory is circulating on social media, and in recently filed lawsuits, that the Americans with Disabilities Act (ADA) prevents people from being forced to wear a face covering in order to enter a business establishment.

Since late April, a flyer has been making the rounds on social media that provides a blueprint for asserting these alleged protections. The flyer advises that if a customer enters a business without wearing a mask and is confronted by a store employee, the customer should say they have a medical condition that prevents them from wearing a mask.

The flyer then states that since the ADA prohibits businesses from inquiring into customers' underlying medical conditions and requires the business to provide reasonable accommodations, its employees cannot ask the customer any further questions without the business being subjected to fines.

This theory is dubious, at best.  As a starting point, the ADA applies only to people with disabilities, so the argument that any business customer can assert an ADA claim is false.

It is true that the ADA generally prohibits businesses and other places of public accommodation from instituting screening criteria that discriminates against people with disabilities. If the screening criteria is permissible—for a business, health, or other business justification—then employers are still generally required to make reasonable accommodations for people with disabilities.

However, the ADA also includes a “direct threat” exception to the general reasonable accommodation requirement. The ADA defines this as a “significant risk to the health or safety of others that cannot be eliminated by a modification of policies.” Numerous court decisions have made clear that the alleged “direct threat” must pose an actual risk and thus cannot be based on stereotypes and other generalizations about people with disabilities.

The COVID-19 pandemic constitutes a direct threat, according to ADA experts.

On May 26, the Pittsburgh Post-Gazette reported that seven federal ADA lawsuits had been filed in the Pittsburgh area against the Giant Eagle grocery chain. In each of these lawsuits, the plaintiff is a person who allegedly is unable to wear a proper face mask because he or she has a disability that makes it difficult to breathe when wearing one.

In Pennsylvania, an executive order has been in place since April 19 requiring face masks for customers and workers in essential business, unless they are under age two or have a medical exception. In response, Giant Eagle issued a blanket policy requiring all customers to wear face masks. In the lawsuits, the plaintiffs claim that Giant Eagle turned them away without making any exceptions.

There have not been any reported court decisions interpreting the direct threat defense in the COVID-19 context, so it is not clear what, if any, reasonable accommodations Giant Eagle would have been required to provide these customers under the ADA.

The Centers for Disease Control and Prevention recommends that people wear “cloth face coverings in public settings where other social distancing measures are difficult to maintain (e.g., grocery stores and pharmacies)”. Click here  to read the agency’s guidance.