Brave New Work Series: Reopening, Face Masks, and Business Responsibilities Under the Americans with Disabilities Act
By: Elizabeth J. McInturff, Esq. and Maria Stratienko, Law Clerk
As states and localities slowly begin to reopen with phased re-entries into the “new normal,” several governments have issued orders requiring the use of a face mask (including cloth face coverings) when in public spaces. The District of Columbia, Maryland, and Virginia have all issued such regulations, and businesses remain free to impose legitimate safety requirements necessary for their safe and healthy operation.
These policies and mandates have left businesses — both essential and non-essential — with questions when serving clients or customers who cannot wear face masks due to a disability. What are a businesses’ responsibilities in negotiating these mask laws, their own mask policies, and the interplay of both with the Americans with Disabilities Act (ADA)?
Disabilities Hindering Individuals from Wearing a Mask
Several forms and types of disabilities may prohibit individuals from wearing a mask. For example, the Centers for Disease Control (CDC) has stated that a person who generally has difficulty breathing should not wear a mask. Such difficulty may arise from respiratory illnesses like asthma, chronic obstructive pulmonary disease (COPD), or cystic fibrosis. The CDC has extended these guidelines to individuals who may also have difficulty functioning with a mask on, such as people with post-traumatic stress disorder, severe anxiety, claustrophobia, or autism. Further, individuals who may have difficulty removing a mask (such as people with cerebral palsy or other limited mobility) should not wear a mask.
ADA Compliance and Mask Policies/Laws
The Department of Labor, which administers and enforces the edicts of the ADA, currently does not have any specific implementing rules addressing mandated face mask regulations. However, the ADA does speak to several aspects of masking that businesses should remain aware:
First, while businesses may craft and enforce safety requirements to mitigate COVID-19-related risks, the ADA mandates these requirements stem from real, specific, and legitimate risks — not speculation, stereotypes, or any generalization regarding an individual with a disability. To best protect both employees and customers, businesses are encouraged to implement screening protocols that are consistent with CDC and public health authority guidelines, all of which are consistent with ADA regulations. Such protocols may include:
- Offering face masks to employees and customers who are ill until they are able to leave the business’s premises
- Posting signs with information regarding COVID-19 in places sick customers may visit (such as pharmacies and grocery stories)
- Developing policies to promptly identify and isolate people manifesting symptoms of COVID-19, including both employees and customers
Second, the ADA holds that businesses must consider “reasonable modifications” to a face mask law or self-promulgated policy such that disabled individuals may still participate in and benefit from offered programs, goods, and services. These modifications may include:
- Curbside pickup services facilitated through online or phone orders
- No-contact delivery services facilitated through online or phone orders
- Appointments conducted via phone or videoconferencing technology
- Permissible modified face coverings, including face shields, scarves, or other loose face coverings
Importantly, there are three rationales under which a business need not provide a “reasonable modification” to the face mask policy (regardless of whether the policy is the result of a government mandate or the business’s own choice). These include:
- Where the modification would change the nature of a business’s services, programs, activities, goods, or facilities to such a degree that the business’s original program is no longer the same.
- Where the actions the business must take to provide and facilitate the modification would cause an “undue financial or administrative burden,” including a significant expense or significant difficulty to the business
- Where the disabled individual’s being unmasked poses a “direct threat to the health and safety of others,” defined as a “significant risk to the health or safety of others” that the business cannot mitigate through a reasonable modification. Notably, this caveat may not be based on generalizations or stereotypes regarding the manifestations or effects of a disability; rather, it must stem from an individualized evaluation of the situation considering the actual abilities and disabilities of the individual compared to the activity the business provides.
Absent these three caveats, businesses should provide disabled individuals who are unable to wear a mask as a result of their disability with a reasonable modification to facilitate access to the business’s goods and services.
As the pandemic continues, businesses should prepare reasonable modification plans they can share with individuals with disabilities to remain in compliance. Businesses should also remain aware of circumstances under which they can refuse service to enforce safety requirements and policies, as well as potential limitations on reasonable modifications. If you have questions regarding your business’s rights and responsibilities in the “new normal,” contact the experienced attorneys at JDKatz, P.C. today.
Please note this post only regards individuals for whom a disability precludes wearing a mask and does not serve as an endorsement of other unmasked behavior. Wearing a face mask remains one of the most important ways to slow the spread of COVID-19.