“I Can’t Wear a Face-Mask, I have a Disability.”
Yesterday, Gavin Newsom issued an Executive Order requiring that a face covering must be worn in certain high-risk situations, including “[i]nside of, or in line to enter, any indoor public space.” This Order was issued after Orange County issued a requirement that rescinded the mask requirement. The facemask requirement applies to most individuals with a few exceptions, including:
- Persons with a medical condition, mental health condition, or disability that prevents wearing a face covering. This includes persons with a medical term for whom wearing a face-covering could obstruct breathing or who is unconscious, incapacitated, or otherwise unable to remove a face covering without assistance.
- Persons who are hearing impaired, or communicating with a person who is hearing impaired, where the ability to see the mouth is essential for communication.
Even in the middle of a pandemic, businesses still must comply with American Disability Act (“ADA”) and make reasonable accommodations to individuals with disabilities. This puts companies in an awkward position, how does it protect its employees, other clients, and customers, by requiring a facemask while complying with the ADA?
Under the ADA, businesses that are open to the public must offer reasonable accommodation to ensure that customers with disabilities have equal access to a company’s goods and services. The following recommendations may be helpful to your organization to comply with these conflicting requirements.
- Posting signage requiring that customers must wear a protective covering, including a face mask or a face shield and that the business refuses the right to enter if the requirement is not followed. Be sure that your sign includes that your business will provide reasonable accommodation upon request.
- Allow the individual to wear an alternative to a face covering, such as a scarf, loose face covering, or full-face shield.
- Allow customers to order on phone or online and use curbside pick-up or no contract delivery
- Offer alternative appointment times
Remember, you cannot ask an individual about their underlying medical condition or to prove their condition.
Notwithstanding those issues, a business owner must provide a safe environment for staff and customers. Even with proper risk management in place, it is, of course, still possible that you may be subject to a lawsuit based on ADA violations. We recommend the following Insurance coverage: general liability, umbrella, director’s and officers liability/employment practice liability These insurance coverages may provide some legal defense in the event of a lawsuit and should be discussed with your attorney and insurance broker. While the focus of this article was based on a client or customer who enters your business, employees who similarly state that they cannot wear a mask based on a medical condition may be entitled to a reasonable accommodation/alternative to a face mask.
We are here to help. If you have further questions, please advise.
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This is for informational purposes only. It is not intended to be legal advice. Consult with your attorney for specific legal advice tailored to your organization.