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Reopening businesses face many difficult questions, one of which concerns whether or not to require employees and customers to wear protective face coverings. Despite the current pandemic and drastic measures taken by local, state, and federal governments, the provisions of the Americans with Disabilities Act (ADA) still apply to employers and places of public accommodation and must be considered when making decisions about face coverings.

The Basics

For most Americans, this is the first time they have been asked or required to wear masks publicly. Regardless of personal misgivings, the Centers for Disease Control and Prevention (CDC) recommends as of May 12 that all individuals wear cloth face coverings in public settings where social distancing measures are difficult to maintain, especially in areas of significant community-based transmission. Almost 40 states have face covering requirements for certain sectors of employees or all individuals who go out in public. Many cities and counties have adopted additional face covering requirements, recommending face coverings in public if not outright requiring it.

The myriad of laws and guidance concerning face coverings come with their own enforcement mechanisms, specifics, and expiration dates, only adding to the stress employers may feel when determining how to address protecting their employees and customers.

Employees

The EEOC recently re-released guidance originally implemented during the H1N1 pandemic which states that employers may require employees to wear personal protective equipment such as gloves and masks during a pandemic. However, if an employee with a disability requests a reasonable accommodation under the ADA, the employer must still provide one.

An employer, however, may deny even a reasonable accommodation if it is an undue hardship or a direct threat. Undue hardship may be based on: (1) financial hardship (2) disruption to business operations; or (3) hardships imposed on co-workers. The undue hardship determination is fact-specific and the employer must prove it in litigation. Employees may assert that they have a medical condition that prevents them from wearing a mask. You must remember that you have an obligation to engage employees in the interactive process to determine the feasibility of any reasonable accommodations that may include things like reassignment of positions so that they are not near other employees or work from home arrangements, if possible.

Generally, working from home is not a reasonable accommodation unless all the essential functions of the employee’s position can be performed from home. Employers who choose to mandate masks must: (1) have a clear policy; (2) know their policy, which involves ensuring employees and supervisors are aware of and knowledgeable about the policy; and (3) uniformly enforce their policy, while being cognizant of and responsive to ADA accommodations.

Customers

As mentioned above, the CDC recommends that all individuals wear masks in public, which would include retail businesses. Additionally, state and local government agencies may require masks be worn in public. CDC guidance provides several exemptions for who should not wear masks: “Cloth face coverings should not be placed on young children younger than 2 years of age, anyone who has trouble breathing, or is unconscious, incapacitated or otherwise unable to remove the cover without assistance.”

Businesses who want to follow the CDC’s guidance may require customers to wear masks to protect other customers and employees. However, they should be cognizant of potential backlash. Some individuals may see mandated masks as an affront to their personal liberties. Others may think the government guidelines are too stringent. Still others may refuse just because they just don’t like being told what to do.

Importantly, in deciding to mandate masks, businesses must provide reasonable accommodations for customers who are unable to wear masks due to a disability, even during a pandemic. The Department of Justice (DOJ), which enforces the ADA in the context of public accommodations has not explicitly addressed face covering mandates and COVID-19, but did issue a memorandum on April 27 United States Attorneys to “be on the lookout for state and local directives that could be violating the constitutional rights and civil liberties of individual citizens,” and on April 9, the Assistant Attorney General for the Civil Rights Division wrote an op-ed emphasizing that the “[t]he Justice Department’s pandemic-related work includes enforcing disability-rights laws….” In other words, the ADA is still fully functional and applicable during the pandemic.

Generally speaking, the ADA requires businesses that are open to the public to provide individuals with disabilities equal access to business’s goods and services. What this means is that businesses that are open to the public must make reasonable modifications to their policies, practice, and procedures to ensure equal access for individuals with disabilities. As a result, business must: (1) include reasonable accommodations as integral components of their policies and procedures; and (2) ensure that all customers have equal access, including those who cannot wear a mask. However, if an individual’s refusal to wear a mask is based on mere social objection, employers may refuse entry.

For retailers and grocery stores, reasonable accommodations might include online or phone ordering and curbside/contact-free pickup, specified shopping hours, or notifying disabled customers that they can enter at another time if they are wearing a full clear face shield. Businesses can tailor their accommodations based on their functions while still providing enhanced levels of safety.

Signage can also further support a business’s goal of enhanced protections. You can post notices at all entrances stating that customers must wear masks, and that the business reserves the right to refuse entry if the requirement is not followed. These notices should also contain a statement about requests for accommodation to avoid ADA-related violations.

Finally, businesses should avoid requiring guests to provide doctor’s notes if they assert that a medical condition makes it difficult to wear a mask. Individuals will likely not be carrying a doctor’s note with them, and some state and local public health orders prohibit requiring medical documentation. While the ADA does not specifically address face masks, the Department of Justice previously provided some guidance on a similar issue in the context of requiring medical documentation for individuals with service animals entering places of public accommodation: requiring “persons with disabilities to obtain medical documentation and carry it with them any time they seek to engage in ordinary activities of daily life in their communities” would be an “unnecessary, burdensome, and contrary to the spirit, intent, and mandates of the ADA.”

Conclusion

Schwartz Rollins will continue to monitor the rapidly developing COVID-19 situation and provide updates as appropriate and is always available to assist you during this unprecedented time.

This article provides an overview of a specific developing situation. It is not intended to be, and should not be construed as, legal advice for any particular fact situation.

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