Does Mandatory Mask Enforcement Violate The American Disability Act?

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Months ago, I wrote about the potential of a type of immuno discrimination or pandemic passport. The flip side to that danger is whether the mandatory enforcement of the masks is actually a violation of the American Disability Act. That issue came to mind this week after officials in Edmonton (Canada) came under fire for issuing exemption cards for citizens under the exemptions in the city’s mandatory mask bylaw. The question is whether barring people with medical reasons for not wearing masks might violate federal law.  The answer is that there is a basis for employees and customers to ask for “reasonable accommodations” but that likely does not include the right to go maskless as long as the government can maintain that the risk of spreading the virus is a public emergency.

Edmonton began offering the cards at seven recreation centers without requiring proof of the condition and even allowing residents to take more than one card for family members who may also be exempt. Almost 2000 people have secured cards.  The city insists that requiring proof from a doctor would be too cumbersome to obtain for citizens and too cumbersome for the city to confirm.

Putting aside the logistics, the story raises a more fundamental question. It is accepted that some people have medical reasons for not wearing masks.  So what is a store to do?  We have seen videos of people upset (and in some cases hysterical) over being turned away after claiming medical necessity.

 

Many stores simply bar those without masks. In states like Michigan, the government mandates that “no business, including local and state government offices open to the public, may provide service to a customer or allow a customer to enter its premises, unless the customer is wearing a face covering as required by this order.”However, what about the ADA?

There are a variety of legitimate medical reasons for declining a mask including respiratory disabilities like asthma, chronic obstructive pulmonary disease (COPD), or cystic fibrosis. There are also conditions like post-traumatic stress disorder (PTSD), anxiety, autism and other conditions that could be barriers.

Under Executive Order 2020-147 the federal government exempts those who “cannot medically tolerate a face covering.”  Some states have the same exception.  Thus, there is a disconnect for those with medical conditions in being exempted but still barred from stores.

The ADA generally prohibits the exclusion of individuals based on a disability absent a showing that the exclusion is needed for safe operations. There are a couple of arguments that a store can make to refuse to make exceptions.

The U.S. Equal Employment Opportunity Commission and the Justice Department have stated that there no clear obligation to make the type of “reasonable accommodations” required under the Act. The EEOC issued a statement “[i]f 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.”

Yet, the EEOC also declares “an employer may not exclude an employee from the workplace solely because the employee has a medical condition that puts the employee at a higher risk for severe illness due to COVID-19.”

Reasonable accommodations due not include “undue burdens.” Moreover, even when a disability can be established as covered under the ADA, it cannot be a “direct threat” (of a substantial risk to others).

The EEOC states “[a]n employer does not have to provide a particular reasonable accommodation if it poses an ‘undue hardship,’ which means “significant difficulty or expense.” In some instances, an accommodation that would not have posed an undue hardship prior to the pandemic may pose one now.”

When it comes to masks, the EEOC states:

  • An employer may require employees to wear protective gear (e.g., masks and gloves) and observe infection control practices (e.g., regular hand washing and social distancing protocols).

  • However, where an employee with a disability needs a related reasonable accommodation under the ADA (e.g., non-latex gloves, modified face masks for interpreters or others who communicate with an employee who uses lip reading, or gowns designed for individuals who use wheelchairs), or a religious accommodation under Title VII (such as modified equipment due to religious garb), the employer should discuss the request and provide the modification or an alternative if feasible and not an undue hardship on the operation of the employer’s business under the ADA or Title VII.

That all seems to suggest that you can require masks from employees (and presumably customers) but you have to still take reasonable accommodations.

In a statement published on the ADA website, the Justice Department has specifically called out official looking cards claiming ADA exemptions as invalid: “These postings were not issued by the Department and are not endorsed by the Department. The Department urges the public not to rely on the information contained in these postings.”

Thus, the ADA claim has been overstated by many. Yet, the question is what a store should do when presented with a card or proof of a medical condition.  Such a person can still spread Covid-19. Yet, these people also need to eat and obtain essentials.

The question is whether reasonable alternatives are already available in such cases for ADA-covered individuals who can use alternative coverings like oxygen masks or having home delivery. Indeed, stores can facilitate such remote shopping options.

There is also the added element of self-protection. Those with medical conditions linked to breathing problems are among the most vulnerable to the virus.  They not only present a risk to others but to themselves in going around maskless.

I do not agree with some that this is a clearly frivolous concern.  There are people who cannot wear masks and thus cannot gain entry to stores with essential supplies.  However, in a pandemic, the exceptions under the ADA loom the largest. This strikes me as an area where reasonable alternatives can be reasonable accommodations.

 

467 thoughts on “Does Mandatory Mask Enforcement Violate The American Disability Act?”

    1. But Trump is going to get wiped out. There is going to be a blue sweep!!!!!

      I noticed that Biden got almost no bump from the convention, and that what little he got faded rapidly.

      I am actually a bit surprised.

      Contra the press I do not think his acceptance speech was good. I think it was dark and mushy with too many promises that Trump has already done.

      But he did not come off as in mental decline and that was a big plus for him.

      1. Yeah, what happened to that senile-Joe meme that was all the rage here for the last month?

        Where did that go?

        1. He wasn’t as senile as expected. If or when he debates Trump and is forced to think standing on his feet we will know better. However, what one knows almost for certain at his best he wasn’t suitable candidate for the presidency.

          1. OK, we’ll put that wish up there with the Durham investigation, and the McCabe indictment.

            Biden was an accomplished leader in the Senate for decades and then VP for 8. He was in charge of the successful response to the 2008 crash, so will be ready for cleaning up the Trump virus disaster.

            It is true he did not host a reality TV show, sell steaks and water, start his own university and charity, or own casinos in Atlantic City – how did they turn out? – but oh well!

            1. Biden was an accomplished leader in the Senate for decades

              What did he accomplish?

              and then VP for 8. He was in charge of the successful response to the 2008 crash, so will be ready for cleaning up the Trump virus disaster.

              He was in charge of nothing at all. The people in charge were Henry Paulson, Ben Bernanke, Sheila Bair, Timothy Geithner, Christopher Cox, Neil Kaskhari, and Jill Sommers. When Obama took office, Paulson, Cox, and Kashkhari departed and were replaced in their positions by Geithner, Mary Schapiro, and Herbert Allison; William Dudley was elevated to Timothy Geithner’s previous position.

              1. “He was in charge of nothing at all. The people in charge were Henry Paulson, Ben Bernanke, Sheila Bair, Timothy Geithner, Christopher Cox, Neil Kaskhari, and Jill Sommers. When Obama took office, Paulson, Cox, and Kashkhari departed and were replaced in their positions by Geithner, Mary Schapiro, and Herbert Allison; William Dudley was elevated to Timothy Geithner’s previous position.”

                And they all botched it.

                The 2009 recovery is the worst ever except the great depression.

                  1. Sorry XXii – but “they botched it”/

                    They had the worst recovery from a downturn since the great depression.
                    That is BOTCHED

                    These are also the people who CREATED the mess in the first place – though most blame belongs with the Fed.

                    TARP as conceived just plain did not work – the Banks REFUSED to sell their MBS’s to the FED at discounted prices.

                    BTW this refusal to sell proves that Steve Forbes Claim that the fundimental cause of the financial crisis was the late 2007 MTM rules change.
                    That is not to say that a recession was not inevitable, but that the scale(as opposed to cause) of the disaster was driven by bad choices by GOVERNMENT. Another huge mistake made by Paulson was restrictions on short selling.
                    Without the ability to short banks the market had no easy means of measuring the scale of the problem and the market panicked and assumed the problem was larger than it was.

                    There was absolutely no good reason precluding a rapid recovery. That we did not get one was the result of the incompent actions of those you praise.

                    Cash For Clunkers was just plain stupid – fortunately it was not big enough to matter.
                    Shovel ready projects, were not shovel ready and created a spike in the demand for civil engineers that could not be filled, choking commercial construction which did not have problems – until the shortage of CE’s stalled projects. Further highway projects DO NOT create jobs for those in residential construction – and create very few jobs at all.

                    One of the great failures of all leftist economics – including stimulus is the “knowledge problem” – if government was actually capable of stimulating the economy – it they could direct resources to effectively mitigate the harms of some downturn – without large unintended consequences elsewhere – then socialism would have worked.

                    There is no difference in the knowledge needed for government to run an economy – which we know they can not do, and for government to stimulate an economy.

                    Then there is Dodd-Frank a giant mess that is an open admission that the failure was a government failure not a market failure.

                    Dodd-Frank does not address a single thing that the left has claimed where the causes of the great recession.
                    It meddles with a bunch of things that had absolutely nothing to do with it.

                    The reason that Dod-Frank does not regulate anything that Democrats claimed was the cause of the recession – is because they KNOW the failure was one of government not markets.

                    In point of fact it was the consequences of numerous failures of government. But MOST of those only directed the failure into housing.
                    The root cause of the financial crisis was “The Maestro” buying his own hype and starting in the mid 90’s deviating from the sound rules based monetary policy that had given us “the great moderation” and pumping too much money into the economy.
                    The error was small, but it continued over about a decade and one major problems with such errors is they compound.

                    As little as a 1% increase in interest rates in the early 20th century would likely entirely averted the entire mess.

                    1. 1. You’ve misconceived what their aims and function were in the situation and what was the responsibility of the elected officials. Their job was crisis management, which was executed satisfactorily if not perfectly.

                      2. The policy actors can influence but not control events. One vector neither the crisis-management crew nor the elected officials could control was the sheer size of the quantum of delinquent loans.

                      3. The original conception of the TARP plan was almost immediately abandoned.

                      4. The TARP and Maiden Lane plans as a whole had the intended effect, with some losses (mostly on the AIG rescue).

                      5. Most of your complaints concern policy matters outside the scope of the duties of the individuals named above.

                      6. No, the Fed was not responsible for generating the crisis, except in the imagination of a scatter of Austrian economists.

                    2. “1. You’ve misconceived what their aims and function were in the situation and what was the responsibility of the elected officials. Their job was crisis management, which was executed satisfactorily if not perfectly.”

                      The economy is not the job of government. There is ample evidence that it is incapable of dealing with the economy.
                      And no the job of Government is NOT crisis management. The job of government is securing liberty.

                      “2. The policy actors can influence but not control events. One vector neither the crisis-management crew nor the elected officials could control was the sheer size of the quantum of delinquent loans.”
                      Poppy cock. This was a mess of their creation. As noted a mere 1% increase in interest rates would have prevented the entire mess.
                      Further the scale of the problem was NOT all that large. As noted TARP as orignally conceived failed because the banks refused to sell their MBS’s in the end they collected on them at I beleive about 98% of face value TARP offered them .25/$.

                      “3. The original conception of the TARP plan was almost immediately abandoned.”
                      Correct, because it was a stupid idea that did not address the problem.
                      Suspending Mark To Market (preferably permanently) and restoring normal market rules for short selling would have ended the “crisis” immediately.
                      There still would have been a recession – you can not tank the value of homes and not have a recession.

                      “4. The TARP and Maiden Lane plans as a whole had the intended effect, with some losses (mostly on the AIG rescue).”
                      AIG never proved a problem – because almost no one ever tried to collect on the “issurance” they offered – because again contra your claim about, the overwhelming majority of MBS’s paid off at near face value. All claims that AIG was insolvent rested on the premise that MBS values had a real declined of 75%.

                      One of the fundimental problems with “mark to market” is though it “sounds” free market” it is actually anti-free market.

                      The definition of price is what a willing buyer and a willing sellor agree to. If the sellor will not sell at the buyers offer – there is no price. All we know is that the real price is somewhere between the sellor’s and buyers offers. Until a sellor agrees to sell there is no price.

                      The absolutely stupidest thing that government can ever do is mess with prices – that is why government control of interest rates through the FED is so dangerous. ALL price controls end badly.

                      The FED was created to prevent the recessions and depressions that resulted in the 19th century – primary by bad monetary policy by Congress.
                      But the record of the FED is arguably worse than that of 19th century politicians.

                      “5. Most of your complaints concern policy matters outside the scope of the duties of the individuals named above.”
                      Correct. The cause of the great recessions was monetary policy failure.
                      It was entirely outside the ability of Treasury, the president, congress to fix those problems.
                      AGAIN, If government has the skill and knowledge to bring about economic recovery, then it also has the ability to manage the economy at all other times. The 20th century record of government management of the economy is absymal failure. No government has actually successfully operated an economy. If they can not do that, they can not possibly have the skill and knowledge needed to manage an economic recovery.

                      The “economic calculation problem” or more broadly the “knowledge problem” is why communism and socialism fail. It is also why big government fails. It is also why government can not run an economic recovery. Hayek even managed to persuade Keynes of that before Keynes death.

                      “6. No, the Fed was not responsible for generating the crisis, except in the imagination of a scatter of Austrian economists.”

                      John B Taylor is NOT an austrian. He is generally considered a “new Keynesian”. He was one of those Trump interviewed for Fed Chair.
                      The Taylor rule – which is the rule the Fed used to set interest rates from the 80’s to the mid 90’s disagrees with you.

                      If you bother to check it out you will find Alan Greenspan and Trichet on the majority of the lists of those responsible for the great recession.
                      Especially early on when people were being honest.

                      This is no different than Friedman blaming the great depression on Bad Monetary policy – though Friedman blames the Fed for bursting an investment bubble and then badly misshandling the aftermath – he merely speculates that the FED created the investment bubble.

                      Regardless, the great recession and the great depression share malinvestment as their cause. In the case of the great depression more than a decade of disparity between real interest rates and FED rates again compounding over time resulted in a massive over investment in industry.
                      While the same disparity between 1996 and 2006 resulted in an over investment in housing.
                      I would further note that between 1996 and 2006 – housing was NOT the only investment bubble. It was just the most dangerous.
                      The Fed’s bad monetary policy was creating problems arround the globe over the 1996-2006 period, lest you forget the russian bust, the asian bust and the dotcom bust. But none of these had significant impacts on ordinary americans – for the same reason that the stock market crash in 1929 did not really effect ordinary americans – again see Friedman. The most dangerous of investment bubbles are ALWAYS in durable long term assets and are even worse if those are owned by ordinary people. In 1929 the asset was industry – though there was a smaller housing bubble.
                      In 2006 the asset was homes.

                      Regardless, the BIG problem evident in nearly all economic downturns is that GOVERNMENT action gets almost the entire market moving in the same direction. That is ALWAYS going to result in failure. it is pretty much like getting the water in a bathtub moving in sync. The economy does not on its own ever naturally move in the same direction. When the London whale though that with Billions of JP Morgan money to play with he could push the market the way he wanted – yet he was destroyed by a relatively small hedge fund that said “something is wrong”
                      Private actors never have the power to move the market all in the same direction. That takes government.

                      As noted – many people at the time blamed Greenspan. But that fizzled – not because it was not true – but because government – and remember many of the most notable people in politics and economics have a stake in our never deciding government caused the problem can not admit failure.

                      Look how long it took before Friedman was taken seriously on the great depression.

                1. “And they all botched it.”
                  ____________________

                  “It” was all unconstitutional with no authority to tax for “bail outs” or any other form of “assistance” to free market private enterprise located anywhere in the constitution.

                  Please cite constitutional authority for participating in any aspect of the operations of any private enterprise, or any other constitutional authority to tax for individual or specific welfare, charity or any other form of redistribution of wealth.

                  The Constitution severely limits and restricts Congress’ ability to tax, regulate or interfere in business operations or, otherwise, free enterprise.

                  The Constitution does not say, “Do whatever you like or arbitrarily deem the right course.”

                  1. George, we have different interests.

                    While it is likely that I share your narrow reading of the constitution – all law and constitution must be read narrowly – that was once a fundimental principle of western law, I am more interested in deeper principles.

                    The constitution is NOT the inerrant word of god. It is not “biblically true”.

                    The significance of the constitution is that it mostly “gets it right”.

                    Government just plain can not manage the economy. If we did not learn that from Adam Smith, we have had dozens of very hard lessons since.

                    Whether it is the lite failures of the UK or socialist democracies or the more catastrophic failures of the USSR, PRC, Cuba, Venezuela, ….
                    Big government FAILS.

                    We can and should learn the specifics of why and there is alot of good economics out there to explain that.
                    You can disagree with the “knowledge problem” or the “economic calculation problem” – you are still left with the problem that the failure of government management of the economy is impossible to hide.

                    As Einstein said “the definition of insanity is doing the same thing over and over and expecting a different result”.

                    There is alot of wisdom in the constitution. But it merely confirms what history tells us unequivocally. Governments can not manage economies.

            2. “Biden was an accomplished leader in the Senate for decades”
              And is now disowning all those accomplishments because BLM and the left hate EVERYTHING he did in the past.
              From Crime to busing to …

              “and then VP for 8.”
              In the most corrupt US administration ever.

              “He was in charge of the successful response to the 2008 crash”
              Only successful to the extent that unlike FDR he did not trigger another recession.
              The only US recovery as bad as the “great rcession” was the “great depression” – what do they have in common ?
              Massive government intervention.

              BTW i oppose shutting down the economy AND i oppose Trump’s stimulus.

              That said I beleive that the Covid Crash was much faster and much worse than 2008,
              And it is likely we will be fully recovered by the end of the year.

              “so will be ready for cleaning up the Trump virus disaster.”
              Only in your head.

              As we see giant increases in spain, and increases accross Europe, the only western country that appears to have got it right was SWEDEN,
              The one who did nothing.

              Biden has accomplished nothing in life of consequence except making relatives wealthy off the public tit.

              How did Trump’s accomplishments turn out ? Nearly all successes, most still here. They made money for him and for others.
              And the way you do that in the free market is delivering value to others.

              Millions watched his “reality TV show”
              Millions went to his casinos. Bought his steaks. …..
              No one did that because they had to.
              They did it because they wanted to.
              No one held a gun to their head.

              Biden has NEVER done anything in life that required people to chose freely – without government coercion.

        2. The senile old Joe meme ain’t near gone. He did OK under optimal circumstances.

          Put him infront of a reporter, or Trump without a teleprompter.

          He had LOTS of problems in a 25min speech. But he did not crash and burn.

          I honestly hope he is competent, but the odds are against it.

          Have you ever had to deal with anyone with Dimension ?

          They have good days and bad days.

          No one has claimed that every Biden public appearance for the past year has shown obvious signs of decline.
          But alot of them have, and despite the far that Biden has always had a stuttering problem an odd cadence and a propesity to gaffe, the pattern in the past year has been beyond his past problems.

          Remember between now and the election every bad day costs Biden votes. Good days do not get them back.

          So for the DNC convention “bounce” has been minor.

          Trump is ahead of where he was with Clinton in 2016 – and the odds are the news from now to November favors Trump

          1. John,

            I don’t think I would rule out Joe’s getting a chemical boost before his talk.

            His decline over time seems to have been fairly obvious. Other posters who have had to deal with relatives with dementia have recognized the symptoms more quickly than I would, but I trust their judgment.

            1. “I don’t think I would rule out Joe’s getting a chemical boost before his talk.”

              There is only so much you can do with mental decline.

              But all forms of mental decline have good and bad days.

          2. Biden did the same speech when he was running for VP. There are only a few changes from his 2012 speech.

            1. There were a few parts of the 2012 VP speech incorporated into his 2020 Presidential speech. It was not essentially the same speech as 2012. One has to wonder where you came up with that idea.

                1. Anonymous the Stupid, iIt was not the same speech. The phrases and sentences copied from the old speech based on that clip were about 1 minute of the entire 25 minute speech. You have problems getting things straight and problems exagerating or figuring out what other people have said.

                  If you weren’t lacking in such brain power you would have recognized it would be impossible to make the same speech. The arguments changed. The people changed.

            2. He still did not botch it.

              Given my guestimate of where he is in terms of cognitive impariment, The odds of his delvering the performance he did on a schedule is very low.
              But it is not impossible.

      2. John, he talked better than we expected. How that equates to debating another individual is a different question but that was the most positive thing of his speech.

        His main policy focus was on Covid. Of the half a dozen things or so he said we should be doing were already done by Trump by the beginning of April and he forgets his previous negative opinion on both the Chinese ban and the European ban on travellers.

        The rest was commonplace and meaningless except it did show empathy. I am sure all those killed or those who lost their businesses, jobs and neighborhoods from the riots forgot all about their suffering. If they didn’t forget about it Biden sure did and stayed away from the terror democrats have inflicted on the nation. He succeeded in making the candidate appear more centrist though without policy covering up the far left’s agenda.

        Biden made a deal with Sanders and the left so his entire speech was a lie by ommission trying to hide the destruction of this country should he be elected.

        1. Focusing on C19 is a dangerous mistake.

          If Biden makes C19 the centerpeice of his campaign he is betting that C19 will get worse in the US as the election approaches.
          And that it does so uniquely in the US.

          There are several europe shiwing signs of mire C19 – if Europe Spikes and THEN the US spikes it will completely undercut the Trump F’d up meme.

          If the US declines headed to the election – regardless of the world – no one will care about C19.

          And democrats have to be real careful about this Pandemic Porn it can really easily blow up in their faces.

          While americans are unsure about school reopening – the science – contra the left is clear. This is 1/5 as bad for kids as Flu. It is less bad for MOST teachers than Flu, the few teachers that are at risk can be dealt with.

          Regardless, schools are for kids, not teachers.

          Further, failing to reopen public schools plays strongly into the hands of school choice advocates.

          We are already seeing “pandemic pods” and then lefties claiming they are racist. The left seems to fail to grasp that no parent wants their kid to be “equal” to other kids. They all want their kid to be better, and will do what they can to give their kid a leg up, and they will not feel guilty about that.

          Anyway there are few likely future C19 scenarios that favor Biden.

          We have about 3 months to the election. The US numbers are trending down.
          And we will start hearing more about vaccines soon.

          1. The facts confirm the “Trump f..ked up” meme and John is dreaming – again – if he thinks that’s not THE issue. Anything short of “I think it will just disappear” makes Trump out as a delusional fool and/or liar.

            Maybe dementia.

        2. “The rest was commonplace and meaningless except it did show empathy. ”

          I do not want empathy from government.
          That is what charities, churches, family are for.

          I want specific problems in their domain solved.

          I want safe streets. I want an end to riots. I want to quit sending our children to foreign countries to die for oil.

          I recently watched a John Lennon Special. I forgot how many “peace songs” he wrote.

          I remember listening to songs like “give peace a chance” and thinking how wonderful and naive his sentiments.
          50 years later – we left Vietnam and it fell. We sacrified 55,000 americans for LBJ and Nixon’s ego’s.
          I can not imagine that just leaving anytime before 72 would have been worse than what happened.

          WE should have left Afghanistan long ago.
          We never should have gone into Iraq, or Libya or ……

          Was Lennon naive – sure. Was he wrong about Vietnam ? No. I was.

          One of the great things Trump has done is restored the GOP as the party resistant to foreign military excursions.
          The neocons have gone back to the democratic party – good riddance!

          If Biden wants to run on Obama’s legacy – that is a legacy of debacle.
          He blew the economy, He blew energy, he blew foreign policy, he failed to keep his promises regarding Afghanistan and IRaq and actually expanded our foreign entanglements.

          When Schumer said “don’t mess with the intelligence community” – he should have said “don’t mess with the neocons of both parties”

          Obama ran against them, but as president kowtowed to them.
          Trump ran against them, and kept his promises – and an awful lot of the “collusion delusion” as well as the “resistance” and the impeachment were about the war mongers of both parties punishing Trump.

      3. “It is better to lead from behind and to put others in front, especially when you celebrate victory when nice things occur. You take the front line when there is danger. Then people will appreciate your leadership.”

        – Nelson Mandela
        ______________

        When does “Jim Crow” Joe come out front; come up out of his basement bunker?

        President Trump leads from the front.

        President Trump continuously tells it like it is in common terms.

        President Trump doesn’t have to hide political corruption – he’s not a politician.

        Nelson Mandela endorsed President Trump’s out-front style saying, “You take the front line when there is danger.”

  1. Had to go a long way down to find a topic on the pandemic so here goes.

    From my sister who sent the new home testing system for Corona Virus. First pour a small glass of your favorite beverage. and sniff it. If you can smell the odor half way there. Then a sip. If you can taste it you don’t have the virus’. Using a small glass and small sips you can test up to 17 times a day. Loss of smell and taste are two of the first warning signs. BUT you have to test every day. Which is the reason for the 17 sips and small glass.

    Thanks to my sister who got it from somewhere else so we’re passing it on.

    1. So I can sip 17 glasses of wine a day and attribute it to Corona virus testing!!? This also could be a cure for having to listen to democrats. If this is a government program I take back all the bad things Ihave ever said.

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