Disability Issues Brief
Developed by the Southeast ADA Center and Burton Blatt Institute (BBI) at Syracuse University

The ADA and Face Mask Policies

Updated: 2/3/2021

Contents

Introduction

The COVID-19 pandemic has changed our world in many ways. People with disabilities, people with chronic health conditions such as heart disease, lung disease, and diabetes, and people over the age 60, are at a higher risk of becoming infected and most likely to become seriously ill. Safety measures such as social distancing, stay at home orders, and the wearing of face masks or cloth face coverings are now part of our daily lives. For the purposes of this document, the term “face mask” will be used for both face masks and cloth face coverings. [Black woman wearing face mask in grocery store.]

Wearing a face mask is one important way to slow the spread of COVID-19. The Centers for Disease Control and Prevention (CDC) recommends wearing a face mask in public places like grocery stores and pharmacies, where it is hard to stay six feet apart from other people. [1] Several state and local governments are requiring the use of a face mask when in public spaces.

Wearing a face mask may be difficult for some people with a disability. State and local government agencies or private businesses that want customers to use a face mask may have questions and concerns. This fact sheet offers guidance to questions about the issue of face mask policies, reasons why a person with a disability might not be able to wear a face mask, and the legal rights a person has under the Americans with Disabilities Act (ADA).

May a federal, state or local government agency or a business require customers to wear a face mask?

On March 11, 2020, the World Health Organization (WHO) declared COVID-19 as a pandemic.[2] The Centers for Disease Control and Prevention (CDC) notes that studies have shown that many people who do not have symptoms of COVID-19 can spread the virus to other people. Because it takes four to fourteen days for someone to show symptoms, they also may infect others without knowing it. [3] This means that the virus can be shared between people who are close to each other. For example, people who are speaking, coughing, or sneezing may spread the virus even if they do not have symptoms.[4] Therefore, the CDC recommends that people over age two wear a face mask in public where it can be hard to stay six feet apart from others.[5]
[Woman wearing a face mask and sitting on luggage in an almost empty airport.]

On February 1, 2021, a federal order took effect requiring travelers to wear face masks. According to the order from the Centers for Disease Control, face masks must be worn by passengers on trains, buses, trains and subways, airplanes, ships, taxis and ride-share services as well as any other mode of transportation. The order also requires masks at all transportation hubs including airports, bus terminals, seaports, train stations, and U.S. ports of entry. [30] This guidance follows President Biden’s executive order requiring face masks to be worn on all federal properties. [31]

Based upon the CDC guidance, a business or government agency may require customers to wear a face mask to limit the spread of COVID-19. Guidance from the CDC is likely to change as the COVID-19 pandemic evolves. Therefore, private businesses and government agencies should follow the most current information on maintaining safety by reviewing the Centers for Disease Control and Prevention (CDC) Coronavirus (COVID-19) information (cdc.gov).

The first case regarding the ADA and face masks was decided on October 23, 2020 in the Federal District Court for the Western District of Pennsylvania. The Court denied a preliminary injunction in the case of Pletcher v. Giant Eagle Inc. - If granted, the injunction would have required Giant Eagle Inc. to change its policy of requiring all customers to wear a face mask or other face covering inside their store. In this case, sixty-nine plaintiffs filed a class action suit claiming Giant Eagle Groceries were in violation of Title III of the ADA by denying access to customers who claimed they could not wear a face mask due to their disabilities. In the ruling, U.S. District Judge Nora Barry Fischer determined that the store’s face mask policy was a correct interpretation of the Pennsylvania Department of Health’s order that face masks are to be worn in public spaces and that those who cannot wear a face mask may instead wear a face shield. Giant Eagle noted in their defense that they had in place other modifications to policy and practice consistent with ADA Title III to accommodate customers with disabilities. [29]

Is there a reason a person might not be able to wear a face mask?

The CDC states that a person who has trouble breathing, is unconscious, incapacitated, or otherwise unable to remove the face mask without assistance should not wear a face mask or cloth face covering.[6]

Examples of a person with a disability who might not be able to wear a face mask

If a person with a disability is unable to wear a face mask, do I still have to allow them in my business or government agency?

The number of states with mask mandates changes in response to current outbreak conditions. The District of Columbia and Puerto Rico also have mask mandates in place.

These mandates vary by state but generally call for face masks to be worn inside public spaces, public transportation, and any situation that where six feet of social separation cannot occur. These mandates also include exemptions for children, people with disabilities or medical conditions, and situations where masks interfere with effective communication.[26] These state mandates do not override the consideration of reasonable modifications required by the Americans with Disabilities Act (ADA). Many private businesses have also developed policies requiring the use of face masks. The ADA does not have any rules that address the required use of face masks by state and local governments or private business owners.[Woman wearing a face mask and gloves delivering a shopping bag.]

If a person with a disability is not able to wear a face mask, state and local government agencies and private businesses must consider reasonable modifications to a face mask policy so that the person with the disability can participate in, or benefit from, the programs offered or goods and services that are provided. A reasonable modification means changing policies, practices, and procedures, if needed, to provide goods, services, facilities, privileges, advantages, or accommodations to an individual with a disability.[10] It is important to focus on how to provide goods or services to a customer with a disability in an equal manner. This can be done by reasonably modifying your policies, practices, or procedures.

The requirement to modify a policy, practice, or procedure does not include individuals without disabilities, as they are not protected under the ADA.

Examples of reasonable modifications to a face mask policy

Are there any situations when an agency or business does not have to provide a reasonable modification to the face mask policy?

There are three reasons under the ADA that a state or local government agency or private business may not have to provide a reasonable modification.

Fundamental Alteration

A state or local government agency or private business may not have to provide a reasonable modification if the modification would change the nature of the service, program, activity, goods, services, or facilities.[11][12] A fundamental alteration is a change to such a degree that the original program, service, or activity is no longer the same.[13]

Undue Burden

A state and local government agency or private business is not required to take any action that it can demonstrate would result in an undue financial or administrative burden. An undue burden is a significant difficulty or expense.[14][15]

The requirements for showing an undue financial or administrative burden are different for a state or local government agency and a private business.

State or Local Government Agency and Undue Burden

The head of a state or local government agency or his/her designee are the only ones who can make the decision as to whether or not a reasonable modification is an undue burden. The decision-maker must provide information in writing with the reasons why the modification is an undue burden.

In determining whether financial and administrative burdens are excessive, all financial resources used to fund the programs, services, or activities of the public entity must be considered. If an action would result in an undue burden, the state or local government agency must look for other ways to ensure that individuals with disabilities receive the benefits and services of the program or activity.[27]

Private Business and Undue Burden

A private business must consider the following things to determine if an action or reasonable modification would result in an undue burden.

  1. The nature and cost of the reasonable modification;
  2. The overall financial resources of the business making the reasonable modifications; the number of people employed at the business; the effect on expenses and resources of the business; legitimate safety requirements that are necessary for safe operation, including crime prevention measures; or the impact otherwise of the action upon the operation of the site;
  3. For businesses with multiple sites, consideration is given to the degree of geographic separateness and the administrative or financial relationship of the sites that will make the modification more difficult or expensive.
  4. If applicable, the overall financial resources, size, number of employees, and type and location of facilities of the parent corporation or entity (if the business involved in the reasonable modification is part of a larger business);
  5. If applicable, an assessment is made of the parent corporation or entity's type of operation, including the structure and functions of the workforce. [28]

Direct Threat

A state or local government agency or private business may not have to provide a reasonable modification to the face mask policy if the individual with a disability poses a direct threat to the health or safety of others.

A direct threat is a significant risk to the health or safety of others that cannot be eliminated by a modification of policies, practices, or procedures, or by the provision of auxiliary aids or services. [16][17] 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.[18][19]
[Signs outside a store - face coverings required, no reusable bags.]

During a pandemic, state and local government agencies and businesses should use the most up to date information from the Centers for Disease Control and Prevention (CDC), the U.S. Department of Labor Occupational Safety and Health Administration (OSHA), and the state public health agencies. Because the pandemic threat to health and safety will vary by region, you should consult your local public health agency for guidance.[20]

To limit a direct threat from the COVID-19 pandemic, a state or local government agency or private business may impose legitimate safety requirements necessary for safe operation. However, these groups must ensure that their safety requirements are based on real, specific risks, not on speculation, stereotypes, or generalizations about individuals with disabilities.[21][22] These safety requirements must be consistent with the ADA regulations about direct threat and legitimate safety requirements, and consistent with advice from the CDC and public health authorities.

In order to limit a direct threat and have safety requirements in place to address the COVID-19 pandemic, state and local government agencies and businesses may:

How should I respond to a request for a reasonable modification to the face mask policy?

The U.S. Department of Justice issued two settlement agreements that provide guidance on the reasonable modification decision-making process.[23][24]

  1. A state or government agency should designate at least one person, and a back-up, who are authorized to receive and review requests for reasonable modifications. The decision-maker for a state or local government agency is the head of the public agency or their designee.[25] Although not required, private businesses are encouraged to designate a person to receive and review requests for reasonable modifications and make decisions.
  2. After receiving a request for a reasonable modification, talk with the individual with a disability to learn why the person needs to modify the face mask policy and to find a solution that meets ADA requirements. Decisions about reasonable modifications should be made in a timely manner.
  3. After the discussion, the government agency or private business may:
    1. Agree to the request. In most cases, because the interaction is brief, businesses such as department stores, grocery stores, and pharmacies or government agencies such as the courthouse or drivers’ services, will be able to agree to the request. Generally, state and local governments may not ask for documentation of disability as the interactions are brief and in doing so would amount to unequal treatment of people with disabilities.
    2. Deny the request. If a request for modifications is denied, a state or local government agency or private business is encouraged to provide a written statement as to why the request was denied and provide a copy to the person with a disability, and keep a copy on file.
    3. In some unique circumstances where the interaction is not brief (e.g. a college or university that offers students extended residency in dormitories), the school may ask students with non-obvious disabilities for medical documentation about the person’s disability that is narrowly tailored and is absolutely necessary to:
      1. Verify that the individual meets the ADA definition of disability (i.e., has a physical or mental impairment that substantially limits one or more major life activities); or
      2. Describe the needed modification; or
      3. Show the relationship between the individual's disability and the need for the requested modification.

At this time, the U.S. Department of Justice or other federal agencies with enforcement authority have not provided specific guidance about whether a store can or cannot ask for medical documentation about a person’s inability to wear a mask due to a disability. Generally, guidance from the U.S. Department of Justice has not allowed asking for documentation for accommodations at businesses where interactions are brief, such as grocery stores or pharmacies. Some places such as medical offices or hospitals may need the medical documentation because a person who is not wearing a mask may infect other people who are sick.

Best Practice Tip

Prepare a list of possible alternatives to a face mask/cloth face covering policy that you can share with people with disabilities who request a reasonable modification to your policy. See: Examples of reasonable modifications to a face mask policy for examples of policy modifications.

Summary

As the COVID-19 pandemic continues, state and local government agencies and private businesses must make reasonable modifications to allow people with disabilities to access the goods and services they offer. Following ADA requirements for reasonable modifications within federal, state, and local health and safety guidelines will allow you to keep employees and customers safe, reduce new infections, and still provide goods and services to everyone.

For more resources about rights under the Americans with Disabilities Act (ADA) and how they apply to the coronavirus (COVID-19) pandemic:
ADA, Disability & COVID-19 Resources (adacovid19.org)

For additional information on face coverings and businesses:

For questions and training on the ADA, contact your regional center in the ADA National Network at 1-800-949-4232 or visit adata.org. All calls are confidential. We do not give medical or legal advice. [Refer to: Disclaimer]

Citation

Williamson, P. R., Morder, M. J., & Whaley, B. A. (2020) The ADA and Face Mask Policies [Fact sheet]. Retrieved from https://www.adasoutheast.org/ada/publications/legal/ada-and-face-mask-policies.php

Endnotes

[1] Centers for Disease Control and Prevention. Recommendation Regarding the Use of Cloth Face Coverings, Especially in Areas of Significant Community-Based Transmission. (2020, April 3). Retrieved May 29, 2020, from https://www.cdc.gov/coronavirus/2019-ncov/prevent-getting-sick/cloth-face-cover.html

[2] World Health Organization. (2020, April 27). WHO Timeline - COVID-19. Retrieved June 1, 2020, from https://www.who.int/news-room/detail/27-04-2020-who-timeline---covid-19

[3] Centers for Disease Control and Prevention. (2020, May 12). Clinical Questions about COVID-19: Questions and Answers. Retrieved June 4, 2020, from https://www.cdc.gov/coronavirus/2019-ncov/hcp/faq.html#Transmission

[4] Centers for Disease Control and Prevention. (2020, April 3). Recommendation Regarding the Use of Cloth Face Coverings. Retrieved June 2, 2020, from https://www.cdc.gov/coronavirus/2019-ncov/prevent-getting-sick/cloth-face-cover.html

[5] Centers for Disease Control and Prevention. (2020, May 22). About Cloth Face Coverings. Retrieved June 2, 2020, from https://www.cdc.gov/coronavirus/2019-ncov/prevent-getting-sick/about-face-coverings.html

[6] Centers for Disease Control and Prevention. (2020, May 22). About Cloth Face Coverings. Retrieved June 2, 2020, from https://www.cdc.gov/coronavirus/2019-ncov/prevent-getting-sick/about-face-coverings.html

[7] Centers for Disease Control and Prevention. (2020, May 22). About Cloth Face Coverings. Retrieved June 2, 2020, from https://www.cdc.gov/coronavirus/2019-ncov/prevent-getting-sick/about-face-coverings.html

[8] Definition of claustrophobia. (n.d.). Retrieved May 29, 2020, from https://www.dictionary.com/browse/claustrophobia?s=t

[9] Des Roches Rosa, S. (2020, May 11). Some autistic people can’t tolerate cloth face coverings. Here’s how we’re managing with our son. The Washington Post. Retrieved from https://www.washingtonpost.com/lifestyle/2020/05/11/some-autistic-people-cant-tolerate-face-masks-heres-how-were-managing-with-our-son/

[10] ADA National Network. Health Care and the Americans with Disabilities Act. (n.d.). Retrieved May 29, 2020, from https://adata.org/factsheet/health-care-and-ada

[11] U.S. Department of Justice. Americans with Disabilities Act Title II regulations: nondiscrimination on the basis of disability in state and local government services, (2010). Washington, D.C.: Dept. of Justice. Retrieved from https://www.ada.gov/regs2010/titleII_2010/titleII_2010_regulations.htm

[12] U.S. Department of Justice. Americans with Disabilities Act Title III Regulations: nondiscrimination on the basis of disability in public accommodations and commercial facilities (2017). Retrieved from https://www.ada.gov/regs2010/titleII_2010/titleII_2010_regulations.htm

[13] U.S. Department of Justice. (2008, October 9). ADA Best Practices Tool Kit for State and Local Governments - Chapter 1 ADA Basics: Statute and Regulations. Retrieved June 3, 2020, from https://www.ada.gov/pcatoolkit/chap1toolkit.htm

[14] U.S. Department of Justice. Americans with Disabilities Act Title II regulations: nondiscrimination on the basis of disability in state and local government services, (2010). Washington, D.C.: Dept. of Justice. Retrieved from https://www.ada.gov/regs2010/titleII_2010/titleII_2010_regulations.htm

[15] U.S. Department of Justice. Americans with Disabilities Act Title III Regulations: nondiscrimination on the basis of disability in public accommodations and commercial facilities (2017). Retrieved from https://www.ada.gov/regs2010/titleIII_2010/titleIII_2010_regulations.htm

[16] U.S. Department of Justice. Americans with Disabilities Act Title II regulations: nondiscrimination on the basis of disability in state and local government services, (2010). Washington, D.C.: Dept. of Justice. Retrieved from https://www.ada.gov/regs2010/titleII_2010/titleII_2010_regulations.htm

[17] U.S. Department of Justice. Americans with Disabilities Act Title III Regulations: nondiscrimination on the basis of disability in public accommodations and commercial facilities (2017). Retrieved from https://www.ada.gov/regs2010/titleIII_2010/titleIII_2010_regulations.htm

[18] U.S. Department of Justice. (1993, November). The Americans with Disabilities Act Title II Technical Assistance Manual Covering State and Local Government Programs and Services. Retrieved June 2, 2020, from https://www.ada.gov/taman2.html

[19] U.S. Department of Justice. (1993). Americans with Disabilities Act Title III Technical Assistance Manual - Covering Public Accommodations and Commercial Facilities. Retrieved June 3, 2020, from https://www.ada.gov/taman3.html

[20] U.S. Equal Employment Opportunity Commission. (2020, March 21). Pandemic Preparedness in the Workplace and the Americans with Disabilities Act. Retrieved June 5, 2020, from https://www.eeoc.gov/laws/guidance/pandemic-preparedness-workplace-and-americans-disabilities-act

[21] U.S. Department of Justice. Americans with Disabilities Act Title II regulations: nondiscrimination on the basis of disability in state and local government services, (2010). Washington, D.C.: Dept. of Justice. Retrieved from https://www.ada.gov/regs2010/titleII_2010/titleII_2010_regulations.htm

[22] U.S. Department of Justice. Americans with Disabilities Act Title III Regulations: nondiscrimination on the basis of disability in public accommodations and commercial facilities (2017). Retrieved from https://www.ada.gov/regs2010/titleIII_2010/titleIII_2010_regulations.htm

[23] U.S. Department of Justice. (2016, July 28). Settlement Agreement Between the United States of America and YMCA of the Triangle under the Americans with Disabilities Act (DJ # 202-54-148). Retrieved June 3, 2020, from https://www.ada.gov/ymca_triangle_sa.html

[24] U.S. Department of Justice. (2010, November 22). Settlement Agreement Between the United States of America and the District of Columbia under the Americans with Disabilities Act. Retrieved June 3, 2020, from https://www.ada.gov/dc_shelter.htm

[25] U.S. Department of Justice. (n.d.). Common Questions about Title II of the Americans with Disabilities Act [Text file]. Retrieved June 3, 2020, from https://www.ada.gov/pubs/t2qa.txt

[26] Markowitz, A. (2020, July 30). Does Your State Have a Mask Mandate Due to Coronavirus?. Retrieved July 30, 2020, from https://www.aarp.org/health/healthy-living/info-2020/states-mask-mandates-coronavirus.html

[27] U.S. Department of Justice. (1992). The Americans with Disabilities Act Title II Technical Assistance Manual. Retrieved August 18, 2020, from https://www.ada.gov/taman2.html

[28] U.S. Department of Justice. (2017). Americans with Disabilities Act Title III Regulations § 36.104 Definitions. Retrieved August 18, 2020, from https://www.ada.gov/regs2010/titleIII_2010/titleIII_2010_regulations.htm#a104

[29] U.S. District Court for the Western District of Pennsylvania. (2020, October 23). Pletcher v. Giant Eagle Inc., Civil Action No. 2:20-754 (W.D. Pa. Oct. 23, 2020). Retrieved from https://casetext.com/case/pletcher-v-giant-eagle-inc

[30] Centers for Disease Control and Prevention. (2021, January 29). Requirement for Persons to Wear Masks While on Conveyances and at Transportation Hubs [PDF], Order under Section 361 of the Public Health Service Act (42 U.S.C. 264) and 42 Code of Federal Regulations 70.2, 71.31(b), 71.32(b). Retrieved from https://www.cdc.gov/quarantine/pdf/Mask-Order-CDC_GMTF_01-29-21-p.pdf

[31] The White House. (2021, January 20). Executive Order on Protecting the Federal Workforce and Requiring Mask-Wearing. Retrieved from https://www.whitehouse.gov/briefing-room/presidential-actions/2021/01/20/executive-order-protecting-the-federal-workforce-and-requiring-mask-wearing/

Disclaimer:

These materials do not constitute legal advice and should not be relied upon in any individual case. Please consult an attorney licensed in your state for legal advice and/or representation. These materials were prepared by the legal research staff of the Burton Blatt Institute (BBI) at Syracuse University in partnership with the Southeast ADA Center to highlight legal and policy developments relevant to civil rights protections and the impact of court decisions in the Southeast Region under the Americans with Disabilities Act (ADA). These materials are based on federal disability rights laws and court decisions in effect at the time of publication. Federal and state disability rights law can change at any time.  In addition, state and local laws and regulations may provide different or additional protections. Materials are intended solely as informal guidance, and are neither a determination of your legal rights nor responsibilities under the ADA or other federal, state, and local laws, nor binding on any agency with enforcement responsibility under the ADA. The accuracy of any information contained herein is not warranted. Any links to external websites are provided as a courtesy and are not intended to nor do they constitute an endorsement of the linked materials.

Southeast ADA Center

Web: adasoutheast.org
Toll-Free: 1-800-949-4232 | Phone: 404-541-9001
Email: adasoutheast@law.syr.edu

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