BE SURE TO READ MY DISCLAIMERS AT THE END OF THIS POST.
As the COVID 19 Pandemic continues, more and more businesses as well as state and local authorities require the wearing of masks to prevent the spread of the Coronavirus. My own state, Pennsylvania, recently enacted a mask wearing mandate. These polices have launched loud debates in some circles and even precipitated the appearance of fake mask exemption cards. (The spelling errors alone should have been a clue).
What follows is an attempt to help you separate fact from fiction.
FACT: The Americans with Disabilities Act (ADA) defines a disability as: a physical or mental impairment that substantially limits one or more major life activities, a person who has a history or record of such an impairment, or a person who is perceived by others as having such an impairment.
FACT: There are people who cannot wear a face mask for a disability related reason.
FACT: Not all disabilities are observable.
FACT: The ADA applies to persons who cannot wear a mask for mental or physical health related reasons.
FACT: The ADA exists to prohibit discrimination and guarantee that people with disabilities have the same opportunities as everyone else to participate in the mainstream of American life.
FACT: The ADA provides that persons with a disability have the right to request a reasonable accommodation to a policy or practice so that the person with the disability can participate in, or benefit from the programs, services or goods being offered.
FICTION: The ADA protections mean that a person with a disability that prevents them from wearing a mask must be admitted to public spaces without a mask.
FACT: A reasonable accommodation request may be denied for three reasons (according to the law). The reason that mostly applies to COVID 19 is the direct threat exception. An accommodation is not reasonable if it poses a direct threat to others.
As of this writing, guidance from the CDC and the EEOC supports the analysis of the spread of COVID 19 as a direct threat. The virus can be spread by anyone whether symptomatic or not. And the wearing of masks is designated as one (of many) methods for reducing the spread and reducing the risk of infection.
Therefore, the owner or operator of a business or place of public accommodation may deny access to persons without a mask. However, at the same time, the business owner or operator must offer other accommodations that are reasonable. Click here for more discussion on this topic including some examples of reasonable accommodations.
To be clear, Just say no is not an option here.
Are there people out there who are taking advantage and asking for accommodation even though there is no disability related need for one? Of course there are. However, asking for proof of disability (although permitted under ADA) is risky if not done correctly. And for the purpose of today's topic - COVID 19 and Face Masks - it's not going to make a difference that matters. When we let fear of being made a fool by those who would take advantage control our actions, we risk discriminating against those who truly need accommodation.
Disclaimer #1: I am NOT your attorney. If you are the owner or operator of a business or place of public accommodation, please seek the advice of your counsel as to the applicability of this information to your business.
Disclaimer #2: I've done the research. I am confident in the accuracy of my words as of the date of this writing. However, guidance from the CDC and other state and federal entities is likely to change as the COVID-19 pandemic evolves. Stay informed.
Keep Smiling Keep Moving,
-Paula
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