By Kristina M. Launey

Seyfarth Synopsis: Reopening businesses must quickly prepare for customers claiming the ADA exempts them from face mask requirements.

Business re-opening their doors to serve customers have many issues to consider, and now they must add to their list customers refusing to wear masks because of a claimed disability.

Many businesses are now requiring customers to wear masks at their places of business, either on their own accord or to comply with governmental mandates. There are now reports of customers refusing to comply with this requirement, claiming that their disability prevents them from wearing masks and a refusal to grant them an exemption violates the Title III of the ADA.  We have even seen a document which displays the Department of Justice (DOJ) seal stating that the ADA exempts individuals with disabilities from wearing masks and references penalties for ADA violations.  While it is apparent to us that the document is not issued by the DOJ, is there a basis under the ADA for the objection?

The ADA prohibits the imposition of eligibility criteria that tend to/do screen out individuals with disabilities, unless the business can show the criteria are “legitimate safety requirements” that are necessary for safe operation. Safety requirements must be based on actual risks and not on mere speculation, stereotypes, or generalizations about individuals with disabilities. Requiring customers to wear masks to receive service is likely an eligibility criteria under the ADA, so the question is whether the policy is a legitimate safety requirement.  In places where there is a governmental mandate (e.g., state-wide like Connecticut or county-wide like San Francisco) that people wear masks in public, there is a very compelling argument that a mask policy is based on a legitimate safety requirement. Even where there is no governmental mandate, a business can point to guidelines from the Center for Disease Control or other governmental recommendations that masks are necessary for safe operation to support the business’s mask requirement. Under either scenario, the business should document all support for the requirement, in case it needs to defend its decision to impose a mask policy.

Unfortunately for businesses, demonstrating that a mask policy is justified by “legitimate safety requirements” is not the end of the inquiry because the ADA has a separate requirement that businesses make reasonable modifications to their policies and procedures where necessary to provide access to their goods and services to individuals with disabilities. Thus, a business must consider whether it can modify the mask policy or some other policy or practice so that the individual with the disability can gain access to its goods and services, and whether any such modifications are reasonable.

Governmental mandates and recommendations that masks be worn to protect the safety of employees and customers provide strong support for the unreasonableness of allowing customers to enter a business without a mask.  But the ADA also requires a business to consider reasonable alternatives to access that would not require the customer to wear a mask. For example, instead of allowing a mask-less customer shop in its store, a business may take a phone order which can be placed in/on a customer’s car or in an outdoor pick up area for a contactless exchange.  Businesses should consider alternate means of providing access to their goods and services in advance, so employees can be trained to offer those alternatives to individuals who ask to be exempt from mask requirements due to their claimed disabilities. We should also point out that businesses do not have to modify their normal policies, practices, and procedures if doing so would fundamentally alter the nature of the goods and services they provide.

Edited by Minh Vu