Resolving Tensions Between Disability Rights Law and COVID-19 Mask Policies

Elizabeth Pendo, Robert Gatter, & Seema Mohapatra

As states reopen, an increasing number of state and local officials are requiring people to wear face masks while out of the home.  Grocery stores, retail outlets, restaurants, and other businesses are also announcing their own mask policies, which may differ from public policies.  Public health measures to stop the spread of the coronavirus such as wearing masks have the potential to greatly benefit millions of Americans with disabilities, who are particularly vulnerable to the impact of COVID-19.  But certain disabilities may make it difficult or inadvisable to wear a mask.

Mask-wearing has become a political flashpoint, putting people with disabilities at risk.  There are reports emerging that people with disabilities have been challenged, excluded from retail establishments, and even threatened with arrest for not wearing masks.  Some anti-mask activists encourage their followers to falsely represent themselves as disabled to confound mask requirements, which has the potential to amplify skepticism and mistrust of people with non-obvious disabilities.  Reports of violent conflict over mask-wearing add to these tensions.  The first lawsuit challenging a mask requirement under federal disability rights law was filed in late May, and more are likely to follow. 

Federal laws like the Americans with Disabilities Act (“ADA”) prohibit discrimination on the basis of disability and require appropriate modification of public and private mask-wearing policies to accommodate the needs of individuals with disabilities.  These laws, like other civil rights statutes, remain in force during the pandemic and should operate as a check against any discrimination that might result from a mask requirement.  However, misunderstanding of and noncompliance with these laws limits their effectiveness.

This Article provides the first expert analysis of the federal disability law framework that applies to mask policies issued by state and local officials, as well as by stores, restaurants, and other businesses that serve the public, and the often-confusing interaction between public and private policies.  It argues that contrary to some popular assumptions, mask policies can be employed in a manner consistent with the ADA and the Rehabilitation Act.  Finally, it offers specific recommendations for the design and implementation of mask policies in a manner that accommodates both the rights of people with disabilities and the developing scientific knowledge of efforts to slow the spread of COVID-19.