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.
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:
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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).
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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.