Produced by Disability Rights California and Disability Education and Defense Fund.

Introduction

The COVID-19 pandemic poses a serious risk to public health, especially the health of people with disabilities, including Black, Indigenous, and people of color (BIPOC) with disabilities.¹ COVID-19 is transmitted from person to person primarily through droplets in the air. These droplets are emitted when people talk, cough, sneeze, or breathe.²

Given this method of contagion, the CDC has recommended universal cloth masks or other face coverings, including their use by people who are not medically at risk. Face coverings reduce the wearer’s likelihood of projecting droplets into the air, thereby reducing the risk that the wearer will transmit COVID-19 to others.³

As a result, many businesses, employers, and governments have begun requiring universal face coverings. These requirements function to protect individuals who have disabilities that place them at high risk of a serious or life-threatening outcome from COVID-19 infection. Examples include people with lung disease, asthma, heart conditions, diabetes, kidney disease, or liver disease, people who are immunocompromised, and higher weight people.⁴ The risks are far greater for older adults and BIPOC with these conditions. These disabled individuals need safety protections in place such as masks and social distancing.

At the same time, universal mask requirements present difficulties for some people with disabilities who cannot wear masks either at all or for an extended period of time. Examples include: individuals with developmental or intellectual disabilities, including autistic people, who cannot tolerate masks; people with mobility impairments who cannot independently put on or take off a mask; people with seizure disorders who may be in danger if they experience a seizure while wearing a mask (the mask may obstruct breathing or cause choking); people with lung diseases or breathing difficulties; and people with anxiety disorders who experience panic attacks while wearing masks.⁵ Some people use ventilators to support breathing, and may not be able to safely wear a face mask.  

In addition, some people with disabilities cannot communicate effectively with another person if the other person is wearing a mask. Examples include deaf and hard of hearing people and some people with intellectual, developmental, or processing disabilities.⁶

Further, many people of color and particularly Black people are deterred from wearing face masks because of racial profiling and harassment by police.⁷ And in New York City, the enforcement of social distancing rules have targeted Black neighborhoods, and a large majority of reported summonses and arrests have been of Black residents.⁸ DREDF opposes the use of law enforcement to enforce face mask requirements.

The ADA and Section 504 ensure equal access for disabled people to employment, businesses open to the public, government programs, services and activities, and public transit, with reasonable accommodations if needed for equal access. As well, the laws require inclusion of all people with disabilities, including disabled people with conflicting accommodation needs. The disability community has extensive experiencing in using creativity to resolve complex and even conflicting accommodation needs.

This paper discusses some of the common challenges facing individuals with disabilities during the COVID-19 pandemic caused by face mask requirements. It also reviews some possible solutions, which vary depending upon the context.

Stores, Banks, and Other Businesses Open to the Public

The topic of face masks and disability in the context of stores and other businesses open to the public has received much attention due to the circulation on social media of a fraudulent Department of Justice flyer advising that an individual can demand an exclusion from mask requirements by citing to the ADA and “HIPPA.”⁹

Stores, banks, and similar businesses must make reasonable modifications to their policies to serve individuals who cannot wear a face mask for the duration of their visit due to disability.¹⁰ A business may make some basic inquiries of an individual who requests an exemption from the mask requirement, such as whether they need a mask waiver as an accommodation to a disability.¹¹ However, businesses may not seek documentation or verification.¹²

This does not mean that a business must admit any person who cannot wear a mask due to disability. During the pandemic, a business covered by the ADA is typically trying to accommodate a customer base that includes many disabled individuals who are at high-risk of a serious or life-threatening outcome from COVID-19 infection and a few disabled individuals who are unable to wear a mask. A business is also trying to protect its employees from COVID-19. Given this context, in most cases businesses may lawfully decline to admit customers who cannot wear masks due to disability.¹³

However, businesses must still accommodate these customers – as well as other disabled customers who can wear masks but who avoid entering stores due to their medical vulnerability – by offering curbside service.¹⁴ The business may not impose an extra charge on a disabled person for providing curbside service as an accommodation.¹⁵

When curbside service is not possible, the business should consider other accommodations to serve all of its disabled customers, such as offering a scheduled time slot for visiting, expanding physical distancing, and extending plexiglass and other physical barriers.

Another accommodation issue arises for customers who cannot communicate effectively with others who are wearing face masks. Examples include deaf and hard of hearing people and some people with intellectual, developmental, or processing disabilities. Accommodations for these customers may include repeating words, writing notes on a whiteboard, using voice-to-text programs on a smart phone or tablet, and using clear masks,¹⁶ face shields, or plexiglass instead of a cloth face mask during communications.

Government Programs, Services, And Activities

Government programs, services, and activities must be “readily accessible to and usable by individuals with disabilities,”¹⁷ which is a higher standard of access than for private businesses. Government programs must provide reasonable modifications,¹⁸ and ensure equally effective communication for people with disabilities.¹⁹ The government must ensure that its programs are as safe for disabled people as they are for nondisabled people.²⁰

This means that government programs must take affirmative steps to include and protect all disabled people during the pandemic, whether or not they can wear a mask, communicate with other people wearing masks, or be around other people. Such steps include providing:

• Free face masks and hand sanitizer for any employees or members of the public who need to interact in person
• Accessible remote (on-line, video, telephonic, and mail) service, whenever reasonable and equally effective
• Individualized service
• Curbside service
• Waivers or extensions of time for required appointments
• Flexibility, patience, repeating information, writing notes, and using speech-to-text programs
• Auxiliary aids and services including sign language interpreting and real-time captioning
• Use of alternatives to cloth face masks for communication such as clear masks, face shields, or plexiglass barriers

If a disabled person needs a mask accommodation over multiple visits or over an extended period of time, and the need is not obvious, it may be lawful for the government program to require reasonable documentation or verification to confirm the need for accommodation.

Police departments and their officers are covered by the ADA and Section 504. As before the pandemic, police officers should assume that they will encounter and will need to accommodate people with disabilities, including BIPOC with disabilities. During the pandemic, these will include individuals who cannot wear masks, and individuals who cannot communicate effectively with others wearing masks. DREDF opposes the use of law enforcement to enforce mask requirements, especially in light of the systemic racism that is inherently part of law enforcement.

Hospitals and Health Care Facilities

Hospitals and health care facilities typically have the resources, supplies, and trained staff to serve and accommodate patients and necessary visitors who have a range of disabilities. Necessary visitors can include individuals who support patients with disabilities. People with disabilities include people who have COVID-19, people who are at high risk of a serious or life-threatening outcome from COVID-19 infection, people who cannot wear masks, and people who have difficulty communicating with others wearing masks.

Hospitals and health care facilities can rely on guidance from the state and federal government regarding safety for people with and without COVID-19. They can take the following steps to include and protect all disabled people during the pandemic:

• Move appointments to accessible telemedicine through video and telephone, whenever reasonable and equally effective
• Screen and separate patients and other visitors who have or may have COVID-19, or those who cannot wear masks
• Offer free face masks and hand sanitizer to employees, patients, and other necessary visitors
• Have staff use medical-grade personal protective equipment to interact with people with COVID-19 or people who cannot wear masks
• Provide auxiliary aids and services including sign language interpreting and real-time captioning
• Use clear masks, face shields, or plexiglass barriers while communicating with people who are deaf or hard of hearing and who rely on lip reading, or for other disabled people who have trouble communicating with other people wearing masks

If a person’s need for an accommodation is not obvious, or if more information is necessary to ensure the safety of other patients, it may be lawful for a hospital or doctor’s office to require additional documentation or information before granting a mask accommodation.

Employment

Employers have an obligation to accommodate all disabled employees during the COVID-19 pandemic. Disabled employees include people who have COVID-19, people who are at high risk of a serious or life-threatening outcome from COVID-19 infection, people who cannot wear masks (either at all or for extended periods of time), and people who have difficulty communicating with others wearing masks. During the pandemic, employers must balance any competing needs of employees with disabilities, and use creativity to reach safe and inclusive outcomes.

In assessing an employee’s request not to wear a mask at work based on disability, the particular context of the work is critical. A job that can be performed remotely or outside or under solitary conditions, with little or no direct contact with others, is different from a job that must be performed in an indoor, enclosed shared workspace with employees working in close proximity to others. Possible accommodations for people who have disability-related difficulties with face mask requirements include:

• Allowing and supporting telework
• Granting leaves of absence
• Increasing social distancing and physical barriers
• Providing a separate, enclosed work space
• Providing a separate, outdoor work space
• Reducing the number of employees in proximity by changing shifts and schedules
• Offering free face masks and hand sanitizer
• Repeating speech and using speech to text software
• Writing emails or notes instead of or in addition to speech
• Providing auxiliary aids and services such as sign language interpreting and real-time captioning
• Using clear masks, face shields, and plexiglass barriers

An employer may seek reasonable medical documentation to support an accommodation if the disability or the need for accommodation is not obvious.

Public Transit

Because transportation is a lynchpin to integration–to get to work, to get groceries, to go to the doctor–it is important to make public transit safe for riders and workers alike.

Most public transit agencies are requiring or strongly encouraging face masks to board or enter. Agencies are required to modify face mask requirements for the small number of people who cannot wear masks due to disability. As with stores and banks, transit agency employees are permitted to make limited inquiries of an individual who requests an exemption from the mask requirement, such as whether they need a mask waiver as an accommodation to a disability, but may not seek documentation.

Strategies for public transit agencies include:

• making available free face masks including clear masks
• expanding service to allow greater social distancing
• increasing air flow
• installing plexiglass dividers for riders and drivers (that do not block front or back doors)
• making available N95 or comparable medical grade masks for transit employees and COVID-vulnerable riders

 

¹ Centers for Disease Control and Prevention (CDC), People Who Need to Take Extra Precautions, https://www.cdc.gov/coronavirus/2019-ncov/need-extra-precautions/index.html (last updated May 14, 2020). – (Return to main document)

² CDC, Frequently Asked Questions, https://www.cdc.gov/coronavirus/2019-ncov/faq.html#Coronavirus-Disease-2019-Basics (last updated May 24, 2020); Ramananda Ningthoujam, COVID 19 can spread through breathing, talking, study estimates (Letter to the Editor) (reviewing studies), Elsevier: Current Medicine Research and Practice (May 8, 2020), at https://www.sciencedirect.com/science/article/pii/S235208172030057X. – (Return to main document)

³ CDC, Use of Cloth Face Coverings to Help Slow the Spread of COVID-19, https://www.cdc.gov/coronavirus/2019-ncov/prevent-getting-sick/diy-cloth-face-coverings.html (last updated May 23, 2020). – (Return to main document)

⁴ CDC, People Who Are at Higher Risk for Severe Illness, https://www.cdc.gov/coronavirus/2019-ncov/need-extra-precautions/people-at-higher-risk.html  (last updated May 14, 2020) – (Return to main document)

⁵ Shannon Des Roches Rosa, Some autistic people can’t tolerate face masks. Here’s how we’re managing with our son, Washington Post (May 11, 2020),  https://www.washingtonpost.com/lifestyle/2020/05/11/some-autistic-people-cant-tolerate-face-masks-heres-how-were-managing-with-our-son/#comments-wrapper; Centers for Disease Control and Prevention, Cloth Face Coverings: Frequently Asked Questions, https://www.cdc.gov/coronavirus/2019-ncov/prevent-getting-sick/cloth-face-cover-faq.html (last updated Apr. 4, 2020), (“Cloth face coverings should not be placed on ... anyone who has trouble breathing, or is unconscious, .or otherwise unable to remove the cover without assistance…” ). – (Return to main document)

⁶ Deepa Shivaram, New normal of masks is an ‘added barrier’ for deaf and hard-of-hearing community, NBC News (May 23, 2020), https://www.nbcnews.com/news/us-news/new-normal-masks-added-barrier-deaf-hard-hearing-community-n1212456. – (Return to main document)

⁷ Derrick Bryson Taylor, For Black Men, Fear That Masks Will Invite Racial Profiling, New York Times (Apr. 14, 2020, updated May 26, 2020), https://www.nytimes.com/2020/04/14/us/coronavirus-masks-racism-african-americans.html. – (Return to main document)

⁸ Ashley Southall, Scrutiny of Social-Distance Policing as 35 of 40 Arrested Are Black, New York Times (May 7, 2020, updated May 29, 2020), https://www.nytimes.com/2020/05/07/nyregion/nypd-social-distancing-race-coronavirus.html. – (Return to main document)

⁹ Kelly Weill, The Hot New Far-Right Trend: Claiming a Disability to Avoid Wearing a Mask, Daily Beast (May 20, 2020), https://www.thedailybeast.com/the-hot-new-far-right-coronavirus-trend-is-claiming-a-disability-to-avoid-wearing-a-mask (including image of flyer); U.S. Dep’t of Justice, Civil Rights Division, COVID-19 ALERT: Fraudulent Facemask Flyers, https://www.ada.gov/covid-19_flyer_alert.html. – (Return to main document)

¹⁰ 42 U.S.C. § 12182(b)(2)(A)(ii). – (Return to main document)

¹¹ See 28 C.F.R. § 35.136(f) (“A public entity shall not ask about the nature or extent of a person's disability, but may make two inquiries to determine whether an animal qualifies as a service animal. A public entity may ask if the animal is required because of a disability and what work or task the animal has been trained to perform.”). – (Return to main document)

¹² See id. (“A public entity shall not require documentation, such as proof that the animal has been certified, trained, or licensed as a service animal.”). – (Return to main document)

¹³ In this way, the request to enter without a mask is not analogous to a request to enter with a service animal, because of the competing needs of other disabled customers who are present. The mask fact pattern is more analogous to a request to enter with a service animal when the facts are altered to include the presence of several people with severe dog allergies. – (Return to main document)

¹⁴ See 42 U.S.C. § 12182(b)(2)(A)(ii) (covered entity must provide reasonable modifications in policies, practices, or procedures that are necessary to provide to the disabled individual with the goods or services being offered). – (Return to main document)

¹⁵ 28 C.F.R. § 36.301(c). – (Return to main document)

¹⁶ See, e.g., Talking Masks, https://talking-masks.com/?fbclid=IwAR0LiSj_tO5O2wyITRY6_LWtZVGyI_jtgu-8UdhFfFMeZmbNWfG3iFqtNOc, and Clear Mask, https://www.theclearmask.com/?fbclid=IwAR28KCL5zgEDGsuJDwF0xT7vULYn-WkmEeq1snr_Z6GvEQZnQkOKc6OHzb8. – (Return to main document)

¹⁷ 28 C.F.R. §§ 35.149-150, 39.149-150. – (Return to main document)

¹⁸ 28 C.F.R. § 35.130(b)(7). – (Return to main document)

¹⁹ 28 C.F.R. § 35.160. – (Return to main document)

²⁰ California School for the Blind v. Honig, 736 F.2d 538, 547 (9th Cir.), vacated on other grounds, 471 U.S. 148 (1985); Putnam v. Oakland Unified Sch. Dist., No. C-93-3772 CW, 1995 U.S. Dist. LEXIS 22122, at *31-32 (N.D. Cal. June 9, 1995). – (Return to main document)