ADA and Face Mask Policies: A Step-by-Step Response
Featured in: Texas Employment Law Letter | 08/06/2020
by Jacob Monty, Managing Partner of Monty & Ramirez LLP
On March 11, the World Health Organization (WHO) declared COVID-19 to be a pandemic. Since that time, several states and local governments have ordered shutdowns and more recently began requiring the use of face masks in public spaces when social distancing isn’t feasible. Because of the government orders, businesses have been left in a half-open/half-closed limbo. In that quandary, one of the big questions businesses ask is, “Can we require an employee to wear a face mask?” The simple answer is “yes” but with a more complicated caveat.
CDC recommends face masks, and Texas eventually follows suit
In early April, the U.S. Centers for Disease Control and Prevention (CDC) switched gears and began recommending that people over the age of two wear a nonmedical, cloth face mask in public when it’s difficult to stay six feet away from another person. That’s in large part because of how the virus spreads. When coronavirus carriers speak, sneeze, cough, yell, or sing, they project saliva droplets into the air that could infect another person. A mask limits the projection of the droplets and reduces the chance of human-to-human spread.
Fast-forward to July—after an ongoing debate with local and city government officials, Governor Greg Abbott issued a statewide mask mandate. Texans living in counties with more than 20 COVID-19 cases must wear a face covering while in a business open to the public whenever social distancing isn’t possible. But the mandate also provides several exceptions, including for people who have a medical condition that prevents them from wearing a mask.
What does the ADA have to do with this?
Because of the pandemic and state and local government mandates, private businesses have developed their own mask-wearing policies. Because masks have become more prevalent, persons with disabilities have pushed back on businesses requiring masks, stating they cannot wear them because of a disability.
The Americans with Disabilities Act (ADA), as amended by the ADA Amendments Act (ADAAA), requires an employer to provide reasonable accommodations to qualified individuals with disabilities who are employees or applicants for employment. As businesses reopen, state and local governments are requiring their residents to wear face masks while in commercial businesses. So, what disabilities make a person unable to wear a mask?
The CDC says a person with trouble breathing or who is unconscious, incapacitated, or otherwise unable to remove their face mask without assistance should not wear a face mask or cloth face covering. The agency also gives examples of persons with disabilities who might be unable to wear a mask:
- Individuals with asthma, chronic obstructive pulmonary disease (COPD), or other respiratory disabilities may be unable to wear a face mask because of difficulty in or impaired breathing;
- People with post-traumatic stress disorder (PTSD), severe anxiety, or claustrophobia;
- Some people with autism who may be sensitive to touch and texture;
- A person with cerebral palsy who may have trouble moving the small muscles in the hands, wrists, or fingers (because of their limited mobility, they may be unable to tie the strings or put the elastic loops of a face mask over their ears); and
- 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.
These examples are not all-inclusive—there might be other disabilities that make it difficult to wear a mask.
What to do if an employee is unable to wear a mask
Step 1: Determine whether the ADA covers the employer. The ADA covers private employers with 15 or more employees on the payroll for 20 or more calendar workweeks (which don’t need to be consecutive) in either the current or preceding calendar year and state government employees. Additionally, most federal government employees are covered under the Rehabilitation Act, the protections of which are mostly the same as under the ADA.
Step 2: Engage in the interactive process. After an employee says she cannot wear a mask, you must begin the interactive process. Just like with requests for accommodations not related to COVID-19, you can ask her to provide appropriate documentation from her healthcare provider about the impairment and its effect on her ability to wear a mask.
As in any other case, if you need to consult with the employee’s healthcare provider, you must obtain a written medical release or permission from the employee. Her healthcare provider may not disclose information or answer questions about her disability without her permission.
Step 3: Determine whether you can make a reasonable accommodation. For mask-wearing, the CDC considers allowing the employee to wear a scarf, loose face covering, or a full-face shield instead of a mask to be a reasonable accommodation. Another reasonable accommodation could be a temporary reassignment so the affected employee isn’t near other employees or customers. Work-from-home arrangements, if feasible, could be an additional possibility.
You may deny a reasonable accommodation request if it poses an undue hardship on your business or if the disability poses a direct threat in the workplace. Undue hardship may depend on financial hardship, significant disruption to business operations, or hardships imposed on coworkers. The undue hardship determination is extremely fact-specific, and you must prove it if litigation arises. A direct threat is a significant risk to the health and safety of coworkers that cannot be eliminated by a reasonable accommodation.
To limit the risk of harm to employees brought on by the COVID-19 pandemic, private businesses may impose legitimate safety requirements necessary for safe operation. That said, you must ensure your safety requirements reflect real, specific risks, not speculation, stereotypes, or generalizations about individuals with disabilities. The safety requirements must track the ADA regulations about direct threats and legitimate safety requirements and be consistent with advice from the CDC and public health authorities.
Employers that choose to mandate masks should:
- Have a clear policy outlining employee obligations and right to reasonable accommodations under the ADA;
- Inform their employees and supervisors of such policy; and
- Uniformly enforce their policy while being mindful of and responsive to ADA accommodations.
Doing those three things can protect you and curtail the risk of future ADA litigation.