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Masks are now required in Texas. What if you can’t wear one because of a medical condition?
Wearing masks, a practice that health experts say is one of the most effective ways to slow the spread of the coronavirus, is now required across the state. ...
www.dallasnews.com
Businesses probably will accommodate individuals by offering modified services such as curbside delivery.
Wearing masks, a practice that health experts say is one of the most effective ways to slow the spread of the coronavirus, is now required across the state.
But what if you’re unable to wear a mask because of a legitimate medical condition or disability? Can a business refuse to serve you? Here’s what you need to know.
Who isn’t required to wear a mask?
State and local mandates requiring masks acknowledge that there are certain groups of people who can’t safely wear one. The Centers for Disease Control and Prevention says children under 2 and people who have trouble breathing, are unconscious, incapacitated or can’t take off a mask without help shouldn’t wear one.
Local mandates have followed that guidance; Gov. Greg Abbott’s statewide mandate says anyone under 10 or who has a medical condition or disability that prevents them from safely wearing a mask is exempt from the order.
Health experts have said legitimate health problems can include chronic asthma or chronic obstructive pulmonary disease, a lung disease that makes it difficult to breathe. Other conditions that could make wearing a mask difficult could include people who have post-traumatic stress disorder, severe anxiety or claustrophobia, or someone with autism who is sensitive to touch and texture.
Do I have to tell a business about my disability?
A store manager is not able to ask people what their disabilities are, Doron Dorfman, a law professor at Syracuse University who specializes in disability law, told Syracuse.com.
Dorfman said business owners or managers can generally only ask two questions, “Is ... [not wearing a mask] an accommodation?” and “What kind of benefit do you get from not wearing a mask?”
He said asking those questions can help business owners defend themselves in the case of a discrimination lawsuit and they can help a business make accommodations for the person who isn’t wearing a mask.
Viral videos and posts in recent weeks have claimed that customers don’t have to prove or disclose their disability under HIPAA, or the Health Insurance Portability and Accountability Act. But legal experts say that isn’t the case.
HIPAA only applies to three types of covered entities: health plans, health care clearinghouses and health care providers,” Kathy Gips, the director of training at the New England ADA Center, told Snopes. “It restricts their ability to share protected health information. It also gives patients access to their own medical records. It has nothing to do with customers or stores or employment or anything else.”
Can a business refuse to serve someone with a medical condition exempting them from a mask?
A business typically cannot refuse service to someone with a legitimate medical condition that prevents them from wearing a mask.
In the case of mask policies, businesses are required to make reasonable modifications to their services so a customer with a disability can take part in the services offered. This protection comes from the federal Americans with Disabilities Act, which prevents discrimination based on a disability.
A reasonable modification could include allowing a customer to wear a loose scarf or face shield instead of a mask, allowing a customer to use curbside delivery or no-contact services, or setting up a system so the business uses appointments and phone calls when possible.
In Dallas County, which implemented a mask requirement for residents two weeks before the governor’s order, businesses have been told to offer similar accommodations to customers who can’t wear masks, said Dr. Philip Huang, the county’s public health director.
“What our guidance is and what we’re hearing that others can do is just offer some alternative type services,” he said. “So if someone can’t put on a mask and come inside, then they can offer to get the product for them, like a to-go type of thing, or some type of accommodation.”
According to the Southeast ADA Center of the Burton Blatt Institute at Syracuse University, there are some situations in which a business would not be required to serve someone who wasn’t able to wear a mask.
One circumstance is if an accommodation can’t occur without changing the service or how the business operates — such as delivering goods to someone’s home if the business doesn’t already offer that service.
A business also wouldn’t be required to make an accommodation that creates an undue burden. For example, if a store has limited staffing it wouldn’t be required to set up a time for customers to be in the store alone so they wouldn’t have to wear masks
A business wouldn’t be required to serve someone who wasn’t wearing a mask if they were presenting a “direct threat” to the health and safety of other people that couldn’t be solved with an accommodation.
Legal experts say that in the case of COVID-19, a direct threat may be hard to prove because many people have mild symptoms or may be asymptomatic.
Protections only apply to people with disabilities
With mask mandates becoming more common across the country, videos and posts have gone viral on social media in recent weeks of people who are opposed to wearing masks advocating for the use of what some have referred to as “the ADA loophole.”
For example, photos of “mask exemption cards” that state a person is exempt from wearing a mask under the Americans with Disabilities Act have gained widespread attention. The cards, which were issued by an organization called Freedom to Breathe and had a logo from the Department of Justice on it, were confirmed to be fake by the U.S. attorney’s office in North Carolina.
The Justice Department also has cautioned the public about flyers and other postings that contain inaccurate information.
“We know that people abuse these things — just like people take their dogs into places and claim they’re a service animal,” Robin Jones, director of the Great Lakes ADA Center, told the Tampa Bay Times. “This is just unfortunately the nature of human nature. There is no good way for an entity to monitor that.”
Health experts warn that falsely claiming to have a disability to get around wearing a mask is harmful to people who really have medical problems.
“It’s a really cynical use of laws that are designed to protect the population who are most susceptible to getting the virus,” Dorfmann told Syracuse.com. “The people who are most susceptible are people with preexisting conditions, meaning those are people with disabilities.”
https://www.dallasnews.com/author/catherine-marfin
https://www.dallasnews.com/news/pub...g-you-need-to-know-about-the-new-coronavirus/
