Stop Using the ADA and HIPAA to Get Out of Wearing Masks

For the last couple of days, my Twitter feed has been infested with pictures of this card/flyer/waste of a perfectly good tree that some customers have been handing to store employees as an excuse why they shouldn’t have to wear a mask.

[Image description: A red circle with a diagonal line through the middle on top of a drawing of a man wearing a mask. Text reads: I am exempt from the Governor’s regulation mandating face mask usage in public. Wearing a facemask poses a health risk to me. Under the ADA and HIPPA, I am not required to disclose my medical conditions to you.]

Thankfully, most of the discussion has been about what a complete pile of steaming nonsense it is. But in case you or someone you’re unlucky enough to be related to actually believes this dreck, here’s an explanation of why it’s bull****, and why the ADA doesn’t give you the right to enter stores without a mask during the COVID-19 pandemic.

You keep using that law. I do not think it means what you think it means.

First of all, it’s HIPAA, not HIPPA. If you’re trying to misuse a law to justify your irresponsible behavior, you could start by getting the name right. But however you spell it, HIPAA — the Health Insurance Portability and Accountability Act — only applies to health care facilities and services. It’s a complex law, but essentially it says that health care providers have to keep your personal medical information private. They can only share it with other people when you give permission. So if your great aunt Gertrude calls up your doctor, he can’t tell her about that bad case of crabs you had last year unless you sign off on it. HIPAA has absolutely nothing to do with wearing face masks, and does not apply in any way whatsoever to the grocery store or nail salon where you’re pulling out that ridiculous card.

Second, let’s address the misuse of the Americans With Disabilities Act. The ADA defines disability as “a physical or mental impairment that substantially limits one or more major life activities, a person who has a history or record of such an impairment, or a person who is perceived by others as having such an impairment.” Major life activities are things like walking, moving, speaking, eating, seeing, hearing and thinking. If you don’t have a disability, the ADA doesn’t apply to you. (Being perceived as an insensitive jackass doesn’t count. Sorry.)

There must be a connection between the impairment and the reasonable accommodation being requested. In the case of masks, a person who has compromised lung function and struggles to get enough oxygen while wearing a mask has a legitimate need for accommodation, but a person who is blind doesn’t. Businesses cannot require you to disclose the nature of your disability, but you can’t request an accommodation under the ADA if you don’t need it for your impairment.

But wait. Does that mean stores are required to allow people with breathing-related disabilities to wander around unmasked and potentially spreading COVID-19? No, it does not, and here’s why. The ADA is centered around the concept of “reasonable accommodation.” Businesses and organizations that are open to the public are required to make reasonable accommodations for people with disabilities to access their facilities, programs and services. What constitutes “reasonable” depends upon many things, but the law is clear that accommodations are not reasonable if they would endanger workers or customers/visitors. For example, a person in a wheelchair who wants to sit closer to the stage cannot block the aisle in a theatre, because it would impede emergency evacuations. A hospital may legally prohibit service dogs from entering operating rooms to maintain a sterile environment for the safety of patients.

The ADA also allows a business to refuse service or employment to a person with a disability if their presence would result in a “direct threat” to the health and safety of others, and the threat cannot be eliminated through a reasonable accommodation. Based on COVID-19 guidance from the CDC and other global health organizations, persons not wearing a face mask pose a direct threat to the safety of customers and employees, so they can be prohibited from entering the store. However, there are other reasonable ways customers who cannot wear masks could be accommodated — such as curbside pickup of their items. So stores are required to serve disabled customers who can’t wear masks, but they aren’t required to serve them in a way that threatens others.

This lawyer on Twitter explains it well here.

In some ways, this situation reminds me of the people who bring fake emotional support and service animals on planes and into stores. In both cases, entitled individuals are taking advantage of a law intended to protect a marginalized minority and using it for their own selfish ends. But mask refusers take it to another level. I can understand not wanting to put your beloved companion in the cargo hold, and I’d gladly support changes to make traveling with pets safer in a way that doesn’t harm real service dog teams. But the sheer callousness of using a law designed to protect disabled people as an excuse to risk killing disabled people because you don’t feel like covering your face is repellent to me.

I never like to accuse anyone of lying about a disability. Far too many people with real, invisible conditions have been doubted, dismissed and harassed when they are just trying to get their basic needs met. So although most of the people trying to use the ADA to get out of wearing masks are probably not disabled, accusing them of faking isn’t helpful, and it doesn’t really matter anyway. Disabled or not, if you are visiting public places without a mask right now, you’re endangering yourself and others.

If you can wear a mask, wear a f***ing mask. Even if it’s itchy. Even if it’s hot. Even if it gets kind of gross in there after an hour or two. It’s better than you or someone else becoming sick, needing a ventilator and/or dying from COVID-19.

If you truly can’t wear a mask long enough to buy only what you absolutely need, stay home and order delivery. If you can’t get delivery, get curbside pick up. You will be saving lives, perhaps even your own.

For more on the coronavirus, check out the following stories from our community:

Coronavirus Disease 2019 (COVID-19)

Stop Using the ADA and HIPAA to Get Out of Wearing Masks

Editor's Note

Let’s navigate COVID-19 together