Many states, cities and businesses are requiring the use of face masks in public spaces due to the COVID-19 pandemic. Everyone who can reasonably wear a face mask should do so, if not for their own protection, then at least for the protection of others. As countless medical and health professionals have said, there is no good argument against face mask use, except for certain people with disabilities for whom a face mask could cause further harm.

Numerous stories have documented nondisabled people using the ADA as a way to get an exemption from mandatory face mask policies. These impostors have made things much more difficult for disabled people who cannot wear masks, as the public assumes that they too are taking advantage of the law. Social media posters often use the refrain, “If I can jog with a mask in the summer heat, you can wear one in a grocery store,” or something of the like. That anecdote is worthless, of course, but many still find the argument compelling.

The Centers for Disease Control has issued guidance stating that face coverings should not be worn by “anyone who has trouble breathing” or “anyone who is unconscious, incapacitated, or otherwise unable to remove the cloth face covering without assistance.”

We know that many disabilities can cause breathing difficulty, or limit one’s physical function to the point where they cannot attach or remove a face mask. Since the CDC guidance provides little specificity, nondisabled members of the community have little context for who might require an exemption to the face mask rule. Fortunately, the Southeast ADA Center, together with Syracuse University, has released a disability issues brief entitled The ADA and Face Mask Policies. That brief contains the following examples of persons who might not be able to wear a face mask:

  • Individuals with asthma, chronic obstructive pulmonary disease (COPD), or other respiratory disabilities may not be able to wear a face mask because of difficulty in or impaired breathing. The CDC also states that anyone who has trouble breathing should not wear a face mask.
  • People with post-traumatic stress disorder (PTSD), severe anxiety, or claustrophobia (an abnormal fear of being in enclosed or narrow places), may feel afraid or terrified when wearing a face mask. These individuals may not be able to stay calm or function when wearing a face mask.
  • Some people with autism are sensitive to touch and texture. Covering the nose and mouth with fabric can cause sensory overload, feelings of panic, and extreme anxiety.
  • A person who has cerebral palsy may have difficulty moving the small muscles in the hands, wrists, or fingers. Due to their limited mobility,  they may not be able to tie the strings or put the elastic loops of a face mask over the ears. This means that the individual may not be able to put on or remove a face mask without assistance.
  • A person who uses mouth control devices such as a sip and puff to operate a wheelchair or assistive technology, or uses their mouth or tongue to use assistive ventilators will be unable to wear a mask.

This list, of course, is not exhaustive. But it is useful for government officials and business owners to understand the sizable population who would find it difficult or impossible to comply with mask mandates, and who would be eligible for a reasonable accommodation.

There is some debate over whether people with a legitimate reason not to wear a mask should be permitted to move about as normal, such as into a grocery store or other public accommodation. Both Title II and Title III of the ADA include a “Direct Threat” clause which states that the ADA “does not require a public entity to permit an individual to participate in or benefit from the services, programs, or activities of that public entity when that individual poses a direct threat to the health or safety of others.”

Some would argue that, given the persistence of COVID-19 transmission through asymptomatic carriers, every person not wearing a mask is a “direct threat” to the health of others. Of course, in choosing whether to deny service to a customer under this clause, an entity must “make an individualized assessment, based on reasonable judgment that relies on current medical knowledge or on the best available objective evidence, to ascertain: The nature, duration, and severity of the risk; the probability that the potential injury will actually occur…”

That last point, about the need to assess of the probability that the injury will actually occur, raises an important question. With fewer than 1% of Americans having a confirmed, active case of the coronavirus, what is the probability that the lone disabled person not wearing a mask actually poses a direct threat? That is ultimately a question for the courts to answer, but it is worthy of consideration by those who are asked to grant an exemption or an accommodation to a disabled customer.

I have written this article for information purposes only, and not with any particular agenda in mind. It is worth noting that I am able to (and do) wear a mask on the rare occasion that I leave my home, a practice that we should all follow. That said, people who have a legitimate reason not to wear a mask should not face undue barriers in accessing public accommodations as a result of their circumstance. Let’s all be safe – and sensible, together.

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