WASHINGTON - (Legal Newsline) — An American With Disabilities Act (ADA) expert says it's not yet completely clear if individuals with disabilities can be excluded from places of business for not wearing face masks during the COVID-19 pandemic.
Minh N. Vu, the ADA Title III team leader with Seyfarth Shaw, said when it comes to customers with breathing disabilities who find masks too uncomfortable, companies should heed the ADA's requirement to make a "reasonable accommodation" for them.
"Whether a business can exclude a customer for not wearing a face mask under the ADA because of an alleged disability is a difficult question and the answer depends on a variety of factors," Vu said in an interview with Legal Newsline.
Vu said under the ADA, businesses can't ask customers about their alleged disabilities.
"First, a business is not permitted to make inquiries about the nature of a person's disability," Vu said. "Thus, if a customer says he or she has a disability that prevents mask-wearing, the business must accept that representation at face value."
Vu said that businesses should, however, try to make their services and goods available for those who can't wear face masks if they require patrons to wear them in their stores.
"Second, if a business does decide to exclude a person with a disability because he or she will not wear a mask, the business needs to try to ensure access (to) its goods and services in some alternative method, if possible," Vu said. "Curbside pick up or home delivery may be alternatives."
Vu said when making the decision to exclude those who are not wearing face masks, businesses need to look at if the requirement is an actual coronavirus safety concern.
"On the question of whether non-mask-wearers with disabilities can lawfully be excluded, businesses need to consider if this is a legitimate safety requirement for its business and the grounds for this determination must be carefully documented contemporaneously," Vu said. "Factors to consider are federal, state and safety recommendations relating to mask-wearing and the nature of the business in question."
Vu said that some jurisdictions have required mask-wearing in public but have specific exclusions for people with disabilities who cannot wear them, making an exclusion harder to justify.
"If the nature of the business requires people to be in small spaces, (like) a very small store, or close to each other, (like) a nail salon, then the case is stronger for not making any exceptions to mask-wearing and providing alternative access instead," Vu said.