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Opponents of masking requirements cite the Americans with Disabilities Act (ADA) as a reason why masking requirements are illegal. One store in Lincoln is publicizing their no mask policy on these grounds.

Legal falsehoods about mask requirements were effectively debunked by an article in USA Today. I believe, for reasons that I will explain below, that these falsehoods about the ADA undermine the protections provided by the law. But this social media legal hoax contains a few kernels of truth about the ADA.

The first kernel of truth is that requiring protective gear can violate the ADA in some circumstances. The second kernel of truth is that one-size-fits-all policies in the workplace can violate the ADA.

But looking closer at these kernels of truth can help in understanding why the overall story is false.

Protective gear and the ADA

The hoax about masks and the ADA centers in the idea that not wearing a mask is a reasonable accommodation for a disability. But in order for requiring protective gear to violate the ADA it would have to interfere with the ability to perform an essential function of your job. In an employment law context, whether gear is excessive depends on the job.

In April a federal court in Nebraska ruled requiring an evidence technician to wear full protective gear at all times to protect against mold allergies could violate the ADA. Compare that set of facts with being required to wear a surgical mask for a 15-minute visit to the grocery store. Wearing full PPE gear for eight hours is completely different than wearing a cloth surgical mask for 15 minutes.

Other courts have allowed more uncomfortable gear requirements. At the end of July, the relatively worker-friendly 6^th Circuit Court of Appeals found a trucking company could require an employee to wear a CPAP mask even if there was medical evidence the mask was ineffective without violating the ADA. Again, wearing a cloth mask for 15-20 minutes is a lot less cumbersome than sleeping tied to a CPAP machine.

The ADA and blanket requirements

The ADA tends to frown on one-size-fits-all policies. I think that’s part of the reason why employers have difficulty complying with the law. The ADA requires that reasonable accommodations be made for disabled people. But a reasonable accommodation doesn’t mean a preferred accommodation. I will assume for the sake of argument that some people would be unable to wear a surgical mask because of some disability. But in the context of a retail store, a customer who couldn’t wear a mask could request delivery or curb side pick-up.

The danger of the ADA anti-mask hoax

Big business has been crying out for exemptions from legal liability since the beginning of the pandemic. This gross misconception that business will be subjected to lawsuits for requiring masks could fuel support for limiting liability related to COVID-19. While liability limitations have been mostly supported by Republicans, the fact that mostly conservative leaning anti-maskers are invoking the ADA may lead centrist Democrats to support liability limitations about the ADA.

Social media hoaxes and tort reform

Back in 2015, I wrote about how a social media hoax involving the “Rome Statute” and Facebook. The point of the post was that social media hoaxes about the law generally serve to weaken the rights of consumers and employees. The ADA anti-masking hoax is similar. It is premised on the false assumption that business is at risk for excessive litigation. Even before the COVID pandemic, business interests were screaming out to weaken the ADA. Once that belief becomes widespread, lobbyists and law makers move to undercut legal remedies for those with legitimate grievances.

Empathy for the masked

I know first-hand that wearing a mask for extended length of time is uncomfortable. I know for employees working in jobs like nursing, manufacturing, food processing and warehousing that masks are even more uncomfortable. This post is not intended to downplay your discomfort. This post is intended to explain a hoax based incorrect assumptions about an important civil rights law.