Retail businesses instituting face mask policies need to understand the Americans with Disability Act’s prohibitions and requirements to help avoid potential litigation, RumbergerKirk attorneys say. In cities and states that mandate face coverings in public, businesses can likely argue their mask policy is based on a legitimate safety concern.

“No mask, no service” has become the retail catchphrase of 2020. Indeed, many retailers have instituted mandatory face mask policies to protect customers and employees from Covid-19. The right to refuse service to unmasked patrons, however, is not absolute.

The Department of Justice, which is responsible for enforcing the Americans with Disabilities Act, has indicated that the ADA remains fully applicable to businesses during the pandemic. Businesses should accordingly consider the ADA’s prohibitions and requirements in crafting their mask policies.

The ADA generally prohibits policies with eligibility/screening criteria that exclude individuals based on a disability, unless the criteria is deemed necessary for the business to operate safely. It is important that these policies be based on actual risks and not based on speculations or generalizations about people with disabilities.

That being said, the ADA allows a business to impose a restriction if the restriction is addressing a direct threat to health or safety. In cities and states that mandate face coverings in public, businesses can likely argue that their mask policy is based on a legitimate safety concern.

Current federal guidance also suggests that such mask policies accord with the ADA’s requirements. The safety legitimacy of businesses’ mask policies, however, may vary with the evolution of state and federal mask guidance and the spread of Covid-19.

Businesses May Need to Offer Reasonable Accommodations

To be clear, the ADA does not provide a blanket exemption from wearing a face mask. The ADA requires businesses that are open to the public to provide individuals with disabilities equal access to their goods and services.

Businesses open to the public must make reasonable modifications to their policies, practices and procedures to ensure equal access for individuals with disabilities.

The ADA’s reasonable modification requirement means that, while businesses can likely deny entry to maskless customers, businesses must also offer the customer a reasonable accommodation such as curb-side pickup if the customer is not wearing a mask due to an ADA disability.

ADA Prohibits Unnecessary Inquiries in Determining Disability

In determining whether an individual is unable to wear a mask due to disability, businesses must proceed with caution. Asking for medical documentation about a customer’s inability to wear a mask due to disability is ill-advised. There is no definitive federal guidance about whether a retailer is permitted to do so.

However, DOJ guidance generally rejects the view that businesses, such as grocery stores or pharmacies, can require medical documentation of disabilities. In such settings, the DOJ has concluded that 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 “unnecessary, burdensome, and contrary to the spirit, intent, and mandates of the ADA.”

The ADA prohibits unnecessary inquiries into the existence of a disability. For example, if a customer enters a retail store with a dog, the business is permitted to ask only two questions: (1) is the dog a service animal required because of a disability; and (2) what work or task has the dog been trained to perform?

During the pandemic, businesses should consider training employees on how to approach unmasked customers and explain the business’s mask policy. If a customer responds in a way that suggests they are unable to wear a mask, an employee can then ask the individual whether it is because of a disability.

Reasonable Accommodations

If a customer is unable to wear a mask due to an ADA disability, businesses open to the public must proceed to the next step of offering a reasonable accommodation.

In such a situation, the business would need to attempt to serve the customer in an alternative manner that would continue to protect the retailer’s employees and other customers. For most businesses open to the public, reasonable accommodations can take the form of curb-side pick-up, allowing customers to wait in their car for an appointment to enter the building when texted/called or assistance via online store services.

The ADA does not require businesses open to the public to provide a reasonable modification if the modification would change the nature of the service or pose an undue financial or administrative burden.

Mask Exemption Cards Do Not Exist

Lastly, there is no such thing as an ADA mask “exemption” card, even those allegedly bearing the seal of the DOJ. These cards claim that the holder is exempt from wearing a mask due to an ADA disability.

The DOJ has explicitly discredited these cards and does not endorse any mask “exemption” cards in any manner.

This article was reproduced with permission from Bloomberg Law. Published September 15, 2020. Copyright 2020 The Bureau of National Affairs, Inc. 800-372- 1033. For further use, please visit http://www.bna.com/copyright-permission-request/