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Can Someone Legally Ask Why You're Not Wearing a Mask?

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In states and cities across the United States, many people are either encouraged or required to wear masks to help contain the spread of the coronavirus outbreak. While the decision to wear a mask has become a deeply polarized topic in the United States, there are people who cannot wear a face mask due to their health or disability and may need other accommodations.

In conversations and debates about face masks, you may have heard laws and policies like the Health Insurance Portability and Accountability Act (HIPAA), the American With Disabilities Act (ADA), and various constitutional amendments mentioned as arguments against masks or even asking why you’re not wearing one. Some went as far as creating fake face mask exemption cards.

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So can someone legally ask why you’re not wearing a mask? Short answer: Yes. Here is what you should know about whether someone is allowed to ask why you’re not wearing a mask based on the aforementioned laws and what these laws actually mean.

Is this a violation of HIPAA?

HIPAA protects private medical information about patients from being released by doctors or other health professionals without a patient’s consent. HIPPA rules do not apply to people outside of the medical industry and some medical establishments aren’t considered HIPAA entities either. Businesses or public spaces are not included in HIPAA.

If someone were asked anywhere outside a protected health relationship why they are not wearing a mask, this would not be a violation of HIPAA because the law only applies to very specific health care situations. If you’re asked by other people, a business or share your own medical history about not wearing a mask, it’s not a violation of HIPAA.

Is this a violation of the ADA?

The ADA is a law, which had its 30th anniversary last month, that prevents discrimination based on a disability. A key component of this legislation is that it provides reasonable accommodation so people with disabilities have the same access in public life as non-disabled people. The law was designed to prevent discrimination.

Employers are limited in how and when they can ask employees about whether or not they have a disability, but it’s not forbidden in any context. Those who need accommodations typically must reveal their disability in the process. The ADA also includes a “direct threat” exemption that allows public spaces, businesses or individuals to prohibit people from entering if there is a health or safety risk — like not wearing a mask inside because of COVID-19.

However, if someone with a disability cannot wear a mask, the ADA does require reasonable accommodations. Many places that require masks, like Target and CVS Pharmacy, allow alternatives so people can receive services and products through delivery or curb-side pick-up where they would not be required to wear a mask.

With these accommodations being offered to everyone, there is no reason to be asked about your disability, though it wouldn’t be illegal if you were asked. If you’re not wearing a mask in a store or are barred entry and are asked why you aren’t wearing a mask, this would also not be a violation of the ADA.

Is this a violation of the First Amendment?

The First Amendment of the Constitution protects people’s freedom of speech. This amendment does not create rules for what people can or cannot say. Asking why someone is not wearing a mask is not a violation of the First Amendment. If anything, the First Amendment protects people’s right to ask why someone else is not wearing a mask. On the reverse side, because being required to wear a mask does not inhibit the content of anyone’s speech, mask mandates are not a violation of the First Amendment.

Is this a violation of the Fourth Amendment?

The Fourth Amendment of the Constitution protects people from unreasonable searches and “the right of the people to be secure in their persons.” The U.S. Courts have clarified that the Fourth Amendment “is not a guarantee against all searches and seizures, but only those that are deemed unreasonable under the law.” All of which applies to the government only.

Unless it is determined by U.S. law that asking someone why they are not wearing a mask is deemed an unreasonable search, then it is not a violation of the Fourth Amendment. As written, the Fourth Amendment protects against government search and seizure — not private citizens, businesses, associations or other establishments.

Is this a violation of the Fifth Amendment?

The Fifth Amendment guarantees people due process for criminal and civil cases. This includes the right to a jury, prohibits trying the same case twice and protects against self-incrimination. The classic use case in regards to disclosure is when people “take the fifth” on the stand during a trial to avoid implicating themselves in a potential crime.

The Fifth Amendment does not prohibit any person from asking someone a question, whether it is about mask-wearing or something else. You can also refuse to answer a question. The Fifth Amendment does not apply to applications outside of civil or criminal courts.

What are the benefits of wearing a face mask?

The CDC released a statement on July 14 encouraging Americans to wear cloth face masks to help prevent the spread of COVID-19. The agency cited a study that cloth face coverings “help prevent the person wearing the mask from spreading COVID-19 to others.” Some studies suggest masks can reduce coronavirus transmission by 30%, which can have major public health benefits.

People and family members of those who are high-risk for COVID-19 have also asked more people to wear a mask to protect themselves and their loved ones. Masks, more than anything, help us protect each other. Christie Sproba, who has multiple sclerosis, wrote on The Mighty how people who choose not to wear a mask put her at risk. She said:

The point is that many people including you may be walking around with the virus, not know it, and spread it to others. So when you have been all over town not wearing a mask, not taking precautions, not concerned about others, you are putting me at risk.

Read these articles for more information on face-masks during COVID-19:

Image via Getty Images/sv_sunny

Originally published: August 5, 2020
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