ADA and Face Masks

Originally published by William Goren.

One may wonder how I go about deciding what cases to blog on from week to week. Well, I look in a variety of places: fellow legal bloggers; a Google alert set to the ADA; LinkedIn, Lexblog, and law 360. I subscribe to Law 360 and it is worth every penny. I am able to get a variety of cases and documents without having to use the convoluted pacer system. Many of the documents are free because I am a paid subscriber. Very importantly, Law 360 has an army of legal journalists looking for legal cases in their area. Law 360 enables me to subscribe to certain topical areas where I can get the latest news. Today’s case comes from an ADA search I did today on Law 360. An absolutely big issue is people wearing facemasks in public. Unfortunately, it is becoming a political thing and it shouldn’t be. Even so, there are real legal issues associated with it. The facemasks are an issue in two different ways. First, you may have a person with respiratory problems or some other disability that makes him or her unable to wear facemasks. There is a reverse side to that, which I fall into. That is, many in the small deaf and HOH community, to a lesser extent the Deaf community, rely on lipreading for comprehension. I get 50% of my comprehension from lipreading. The facemasks requirements have made it quite an adventure for me going out into the public world when I have to go inside. So, I keep pretty much to the car and outside. I don’t mind wearing a facemask myself for short periods of time. However, my ability to understand others goes way down when they have a mask on. In addition to not being able to lipread, wearing a mask also reduces the volume of the voice. So, it’s a real nightmare.

 

It was only a matter of time before someone filed a lawsuit saying that a place of public accommodation discriminates against a person with a disability in violation of title III of the ADA with a mandatory facemask policy. We now have such a case. The case is Pletcher v. Giant Eagle, Inc., filed in the Western District of Pennsylvania on May 26, 2020. So, what I thought I would do is list the key allegations in the complaint in one section of the blog entry. Then, in a separate section of the blog entry I would talk about my thoughts on the complaint including its various allegations. So, the categories for this blog entry are the complaint itself and my thoughts/takeaways on the complaint. Keep in mind, for purposes of this blog entry we are taking the allegations in the complaint as true. Of course, that may not be the case subject to further discovery. Also, my paragraphs listing the key allegations in the complaint will not match up with the paragraphs of the actual complaint. Finally, at times I am paraphrasing but the substance of the allegations is exactly the same.

 

I

Key Allegations of The Complaint

 

1. Plaintiff has a health condition that substantially impacts her major life activity of breathing and her respiratory system. She cannot wear a mask over her mouth and nose without significant difficulty breathing.
2. On April 15, 2020, Pennsylvania Gov. Tom Wolfe issued a press release announcing that Dr. Rachel Levine under his authority, signed an order directing protection for critical workers at businesses authorized to maintain in person operations during the Covid-19 disaster emergency.
3. The order issued by Dr. Levine effective April 19, 2020, provided that businesses covered by the order should (“should,” is the word that appears in the complaint): require all customers to wear masks while on the premises, and deny entry to individuals not wearing masks, unless the business is providing medication, medical supplies, or food, in which case the business must provide alternative methods of pickup or delivery of such goods; HOWEVER, INDIVIDUALS WHO CANNOT WEAR A MASK DUE TO A MEDICAL CONDITION (INCLUDING CHILDREN UNDER THE AGE OF TWO YEARS FOR CDC GUIDANCE) MAY ENTER THE PREMISES AND ARE NOT REQUIRED TO PROVIDE DOCUMENTATION OF SUCH MEDICAL CONDITION (the uppercase and bold font appears in the complaint itself).
4. Giant Eagle implemented policies and procedures requiring all customers to wear masks even if they are a person with a disability and cannot wear a mask due to their medical conditions.
5. CDC recommendations state that “cloth face covering should not be placed on young children under the age of two, anyone who has trouble breathing, or is unconscious, incapacitated, or otherwise unable to remove the mask without assistance.” (Bold is in the complaint). The CDC also directs individual to make sure when using a face covering that, “you do not have any difficulty breathing while wearing the cloth face covering.”
6. Giant Eagle’s policies and procedures make no accommodation for invitees wishing to shop in the stores who have disabilities that prohibit wearing a mask or make wearing a mask dangerous to the invitees. In particular the policy says: “moving forward until further notice in order to shop our store (or any other Giant Eagle location) you must be wearing a mask. There will be no exceptions regardless of any reason or medical condition (bold in complaint). We thank you for your compliance and understanding.”
7. The owner of one Giant Eagle store posted publicly that the entire company had decided not to comply with the accommodation lifted in Dr. Levine’s order because, “It’s too easy to make up an excuse not to wear mask (bold in complaint), and we refused to put our team members and customers who were masks get any more risk than they already are. Health and safety of our community is more important to us than business.” However, Giant Eagle does not require its team members to wear masks if they provide medical excuses (words in italics actually appear in the complaint but the emphasis is mine).
8. Security guards outside of one Giant Eagle location have told customers who were told that they must wear a mask despite a disability prohibiting the wearing of a mask, that Giant Eagle is a private company not required to comply with the ADA.
9. Giant Eagle employees and security guards have verbally harassed and physically threatened guests with removal and arrest for trespass. Giant Eagle’s employees and agents have called the police and pressed charges of trespass against guests with disabilities who cannot comply with its illegal mask policy.
10. Giant Eagle justifies its policies and procedures by claiming excluding such individual from its stores because they cannot wear a mask for medical reasons due to a disability is okay because they still have the option of staying out of the store and having a Giant Eagle team member shop for them or use curbside pickup and delivery services. In essence, Giant Eagle is treating its guests who cannot wear a mask due to a disability like “lepers,” rather than “guests.”
11. Giant Eagle has gone so far as to call local police departments and have guests who have refused to wear mask because of a disability arrested or threatened with arrest for trespassing on Giant Eagle property.
12. On April 19, 2020, plaintiff entered Giant Eagle’s Elizabeth location without wearing a mask. A Giant Eagle employee told plaintiff she had to wear mask otherwise the Giant Eagle employee could not wait on her. Plaintiff responded by telling the employee that she has a medical condition preventing her from being able to wear masks. Giant Eagle’s employee told plaintiff she had to put on a mask or she had to leave the premises. At that point, another Giant Eagle employee told the plaintiff that the law is that she had to wear a mask. Because the plaintiff could not comply with Giant Eagle’s illegal demands, she left the premises without making a purchase.
13. Under the terms of the ADA, discrimination includes a failure to provide services to a person with a disability to the extent that such services are provided to persons without disabilities. The ADA requires that goods, services, facilities, privileges, advantages, and accommodations be afforded to an individual with a disability in the most integrated setting appropriate to the needs of the individual.
14. Title III of the ADA also requires that no person shall be discriminated against on the basis of a disability in the full and equal enjoyment of the goods, services, facilities, privileges, advantages, or accommodations of any public accommodation.
15. Plaintiff is a qualified individual with a disability within the meaning of the ADA because plaintiff has a physical mental impairment substantially limiting one or more of plaintiff’s major life activities and systems, i.e. she has asthma and a panic disorder affecting her breathing and her respiratory and nervous systems.
16. Giant Eagle has stated publicly that it does not intend to change its mask policy and that its “guests,” who cannot wear masks might use some alternative other than shopping inside the stores without a mask. That means, Giant Eagle neither has any intent of complying with the legal requirements of the ADA nor of training its employees of their need to comply with the ADA.
17. Plaintiff did not pose a direct threat to the health or safety of others. There was no significant risk to the health or safety of others that could not be eliminated by a modification of Giant Eagle’s policies, practices and procedures. Social distancing and other safety precautions were in place at the store, plaintiff had no signs or symptoms of Covid-19, and the Pennsylvania Health Secretary’s order and CDC guideline recognized the need for a medical exception to the mask requirement. Also, Giant Eagle made no individual assessment that consider plaintiff’s actual abilities or disabilities. Instead, Giant Eagle adopted a broad discriminatory policy based on generalizations and stereotypes.
18. Plaintiff requests injunctive relief requiring Giant Eagle to accommodate plaintiff by allowing her to shop in the stores without wearing a mask so that she may enjoy the benefits, privileges, goods, services, facilities, advantages, and accommodations including equal access to and enjoyment of Giant Eagle’s doors in the future.

 

II

Thoughts/Takeaways

 

For purposes of this section, I am assuming that all allegations are true.

 

1. Plaintiff’s respiratory condition is most probably a disability under the ADA. It is very difficult, though not impossible, for something to not be a disability anymore after the amendments to the ADA.
2. B6 of Dr. Levine’s order, here, is not phrased in an optional way. That is, the complaint said that the order demands that businesses, “should.” That makes it seem like the order was phrased in an optional way. Many states around the country are phrasing such orders in an optional way. However, a close look at the order reveals that the order is not phrased in an optional way. Businesses in Pennsylvania are expected to do it Dr. Levine’s way. Interesting, that the complaint seemed to suggest that the order is a recommendation and not mandatory.
3. Since the order is mandatory and has been given the blessing of the governor, the question then becomes whether the governor and Dr. Levine have exceeded their authority in issuing the order. States have the obligation to protect the welfare of its citizenry. Hard to believe that the authority has been exceeded.
4. Since the order is mandatory, businesses must follow those orders unless federal law conflicts.
5. CDC recommendations make clear that certain individuals should not wear masks.
6. Blanket policies (Giant Eagle’s policies that there will be no exceptions regardless of any reason for medical condition) are always very risky under the ADA.
7. One problem for Giant Eagle is apparently it does not require their team members to wear masks if they provide medical excuses but yet they do not give that option to their customers.
8. Giant Eagle is a place of public accommodation under 42 U.S.C. §12181(7)(E). The statements of its employees are simply wrong.
9. The verbal harassment and physical threatening of a person with a disability creates an issue of hostile environment. While hostile environment is commonly seen in title I cases, I haven’t yet seen it in title III cases.
10. 42 U.S.C. §12182(b)(1)(A)(ii)- participation in unequal benefit, states: “it shall be discriminatory to afford an individual or class of individuals, on the basis of adisabilityor disabilities of such individual or class, directly, or through contractual, licensing, or other arrangements with the opportunity to participate in or benefit from a good, service, facility, privilege, advantage, or accommodation that is not equal to that afforded to other individuals,” would seem to be a far better fit for the complaint than the integration mandate cited in the complaint. The integration section of 42 U.S.C. §121812(b)(1)(B) talks about the most integrated setting “appropriate to the individual.” “Appropriate to the individual,” language can get complicated in this situation.
11. We have talked about the obligations of police with respect to the ADA numerous times before and the need for law enforcement training. They also need ADA training across the entire range of the ADA because they may get called into situation dealing with any of the titles. I am not sure this is happening. Of course, one problem is where is the money going to come from in light of Covid-19’s impact on state budgets. Even so, law enforcement does need to know their ADA obligations.
12. The complaint makes the statement that plaintiff is a qualified individual with a disability. That is strange because whether an individual is a qualified individual with a disability is not a concept found in title III of the ADA. It is also strange because even assuming “qualified,” is a part of title III, which it is not, there isn’t any allegations in the complaint that the plaintiff meets the essential eligibility requirements to shop at the store (if you think about it, that is probably a reason why you do not see “qualify,” in title III because in most situations it isn’t an issue). All that said, you often still have to go through a qualified analysis in order to figure out if there is a fundamental alteration or an undue burden. However, going through a qualified analysis is not the same thing as “qualified,” actually appearing in title III.
13. The plaintiff showed up to shop and was turned away. So, I don’t expect standing to be an issue. Also, the complaint contains intent to return language.
14. Under title II’s final regulations, here, and title III’s final regulations of the ADA, direct threat is only a question of whether an individual poses a direct threat to the health or safety of others. The fact that the DOJ regulation do not talk about direct threat to self is a huge issue here. Absolutely true that the plaintiff might be a direct threat to herself. However, the title III regulation, 36 C.F.R. §36.208, here, is quite explicit that the consideration is a direct threat to others. Direct threat to self unlike the EEOC regulation, 29 C.F.R. §1630.2(r) here, is not listed as a consideration in the final DOJ title III regulations. Accordingly, this makes for a difficult argument for the defense to claim that the ADA somehow conflicts with Dr. Levine’s order.
15. The ADA does require an individualized analysis across the board.
16. Two other allegations could have been made in the complaint and were not. 42 U.S.C. §12182(b)(1)D) says that a title III entity cannot adopt administrative methods that have the effect of discriminating on the basis of disability. 42 U.S.C. §12182(b)(2)(A)(i) prohibits a title III entity from, “the imposition or application of eligibility criteria that screen out or tend to screen out an individual with a disabilityor any class of individuals with disabilities from fully and equally enjoying any goods, services, facilities, privileges, advantages, or accommodations, unless such criteria can be shown to be necessary for the provision of the goods, services, facilities, privileges, advantages, or accommodations being offered.” Both of these sections would seem applicable to the facts alleged in the complaint.
17. I expect to see many more of these cases in the future. I also expect to see cases demanding accommodations for those who are lip readers struggling to navigate a facemask world.
18. One way to prevent all of this is to make sure you engage in the interactive process and that you execute the do’s and don’ts of the interactive process we discussed previously.

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