Over the past few weeks, several people have contacted me with stories of being refused entry at everywhere from Costco’s to doctor’s offices, simply because they refused to cover their faces with a piece of flimsy cloth, despite the fact that there is absolutely no science to support its use as an effective barrier to the transmission of the COVID-19 virus. In one case, a mother brought her seven year-old son, who is on the autism spectrum, to a critical eye doctor appointment. The doctor refused to see him unless he wore a mask. She explained that he cannot wear a mask due to his disability, but the doctor said there were no exceptions, and ordered them to leave.
In ordinary times, the Americans with Disabilities Act (ADA) would clearly prohibit the doctor’s behavior, despite the fact that the ADA has an exception which allows business owners to refuse entry or service to persons who pose a “direct threat to the health or safety of others.” The ADA Title III Technical Assistance Manual, which can be found here, does a good job of explaining it:
“A public accommodation may exclude an individual with a disability from participation in an activity, if that individual’s participation would result in a direct threat to the health or safety of others. The public accommodation must determine that there is a significant risk to others that cannot be eliminated or reduced to an acceptable level by reasonable modifications to the public accommodation’s policies, practices, or procedures or by the provision of appropriate auxiliary aids or services. The determination that a person poses a direct threat to the health or safety of others may not be based on generalizations or stereotypes about the effects of a particular disability; it must be based on an individual assessment that considers the particular activity and the actual abilities and disabilities of the individual.
The individual assessment must be based on reasonable judgment that relies on current medical evidence, or on the best available objective evidence, to determine —
1) The nature, duration, and severity of the risk;
2) The probability that the potential injury will actually occur; and
3) Whether reasonable modifications of policies, practices, or procedures will mitigate or eliminate the risk.
Such an inquiry is essential to protect individuals with disabilities from discrimination based on prejudice, stereotypes, or unfounded fear, while giving appropriate weight to legitimate concerns, such as the need to avoid exposing others to significant health and safety risks. Making this assessment will not usually require the services of a physician. Sources for medical knowledge include public health authorities, such as the U.S. Public Health Service, the Centers for Disease Control, and the National Institutes of Health, including the National Institute of Mental Health.” (Emphasis added.)
It seems pretty clear to me that the eye doctor in the above example did not perform the analysis above, required by the ADA. Instead, he just made an independent and immediate judgment that the child posed a threat simply because he was not wearing a mask because, he has decided, all persons who do not wear masks pose a direct threat to the health or safety of others. The problem for him, of course, is that the science does not support this assumption, and the ADA remains in effect even during this pandemic.
The problem for the mother and her son, however, is that during these highly uncertain times, when the fear of this virus has reached levels greater than anything we have seen in this country since polio in the 1940s and ’50s, most business owners are likely to get a pass in court. The fact that most public health officials, Governors, and mainstream media reporters are daily telling everyone that this is an extremely deadly virus and that wearing a mask is one of our only means of protection against it, would be enough, in my opinion, to satisfy most judges and juries that there was a reasonable basis for a business owner to conclude that a person who refuses to wear a mask posed a direct threat to the health or safety of others. It matters not that there is no actual science to support this; a business owner is not expected to be an expert in infectious diseases. The fact that so many authority figures are ubiquitously spreading the misinformation is enough to justify the business owner’s actions. For this reason, they would likely not conclude that the business owner’s fear was “unfounded.”
The one saving grace for the mother and her son in this example, however, is that this was a doctor who was refusing a critical medical treatment. In such a situation, courts may well view the situation with a heightened degree of scrutiny–especially, as here, when the victim of the discrimination is a seven year-old child with a disability. The safest (and most sensible) thing for any business owner to do, in my opinion, is to allow people who are not wearing masks to enter their facility, unless of course the patron/patient is very obviously ill and/or engaging in reckless behavior, like coughing or sneezing without covering their mouths and noses. The second-best approach would be for the business owner to print out the ADA guidelines I have quoted above, and to go through this analysis each time he or she attempts to exclude someone from the business. In that case, I would also recommend keeping a written record of the events that transpired, including proof that each step of the required ADA analysis was performed. The business owner or a designated employee should do this in each and every such situation, in the same manner, so that the records can be admitted if necessary in court as business records (an exception to the rules against the admission of hearsay). As you can see, this is much more cumbersome than just allowing the patron through the door. In the wise words of Sir Paul McCartney, just “Let ‘Em In.”
The contents of this post reflect the individual opinions of the author alone, and do not represent the opinions of the CT Freedom Alliance or any organization or person. Nothing contained herein should be construed as legal advice.