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The ADA and Face Mask Policies

Last Update: 10/20/2022

Wearing a face mask may be difficult for some people with a disability. State and local government agencies or private businesses that want customers to use a face mask may have questions and concerns. This fact sheet offers guidance to questions about the issue of face mask policies, reasons why a person with a disability might not be able to wear a face mask, and the legal rights a person with a disability has under the Americans with Disabilities Act (ADA).

Contents of Fact Sheet

Introduction

The COVID-19 pandemic has changed our world in many ways. People with disabilities, people with chronic health conditions such as heart disease, lung disease, and diabetes, and people over the age 60, are at a higher risk of becoming infected and more likely to become seriously ill. Safety measures such as social distancing, vaccines, respiratory etiquette, and the wearing of face masks are our first line of defense to keep people safe from severe illness. [44]

Black woman wearing face mask in grocery store.

Wearing a face mask is one important way to slow the spread of COVID-19. [45] Wearing a face mask lessens the chance of spreading COVID-19 to others and increases protection from variants of the virus, such as Delta and Omicron and sub-variants like BA.4 and BA.5. [1][43][51]

The number of federal, state and U.S. territories with face mask mandates and recommendations changes in response to current outbreak conditions.[33] The CDC recommends that face masks be worn by everyone, regardless of vaccination status, in areas of substantial and high transmission. The CDC considers substantial transmission to be 50 to 100 new cases per 100,000 people over a seven-day period. High transmission is 100 or more cases per 100,000 people over seven days or in areas with 8% or higher positive test rates.[32]

Additionally, the CDC urges that fully vaccinated people who have compromised immune systems continue to wear a face mask.

The CDC also recommends that fully vaccinated people should continue to wear face masks and maintain social distance in indoor public spaces. The CDC guidance recommends that you do not need to wear a face mask in outdoor settings, unless the setting is crowded and there is likelihood of close contact with others not fully vaccinated. [35] This guidance may differ by state and you should familiarize yourself with current mask mandates and recommendations in your state.

Wearing a face mask may be difficult for some people with a disability. State and local government agencies or private businesses that want customers to use a face mask may have questions and concerns.

This fact sheet offers guidance to questions about the issue of face mask policies, reasons why a person with a disability might not be able to wear a face mask, and the legal rights a person has under the Americans with Disabilities Act (ADA).

May a federal, state or local government agency or a business require customers to wear a face mask?

NOTE: CDC Guidance

The information from the Centers for Disease Control and Prevention (CDC) and other authorities has changed as the COVID-19 pandemic evolves and new variants emerge. Therefore, private businesses and government agencies should follow the most current information on maintaining safety by reviewing the CDC Face Mask Guidance by COVID-19 County Level (February 25, 2022) and CDC Coronavirus (COVID-19) information (cdc.gov).

You can also access more information at:

UPDATES

October 20, 2022: State Mask Mandates

CDC Streamlines COVID-19 Guidance to Help the Public Better Protect Themselves and Understand Their Risk

August 11, 2022: The Centers for Disease Control and Prevention (CDC) provided new guidance to help the public protect themselves and understand the risks of COVID-19.  That guidance includes

  • If you have been exposed to COVID-19:
    You no longer need to quarantine but you should:
    • Wear a high-quality mask for 10 days.
    • Test for COVID-19 on day 5 after the exposure.
  • If you do test positive for COVID-19:
  • You should, regardless of vaccine status:
    • Isolate from others for at least 5 days.
    • Wear a high-quality mask if you must be around others in the home.
    • If you are fever-free for 24 hours without the use of medication, and your symptoms are improving, or you never had symptoms, you may end isolation after 5 days.
  • It is recommended that you wear a high-quality mask through day 10 after you have symptoms or test positive. [69]
What is a high-quality mask?

When choosing a high-quality mask, look at how well it fits. Gaps in the mask can let air with respiratory droplets leak in and out around the edges. Gaps can be caused by choosing the wrong size or type of mask and when a mask is worn with facial hair.

Check the Mask Fit

It is important to check that the mask fits snugly over your nose, mouth, and chin.

  • Check for gaps in the mask by cupping your hands around the outside edges of the mask.
  • Make sure no air is flowing from the sides or the mask area near your eyes.
  • If the mask has a good fit, you will feel warm air come through the front of the mask and may be able to see the mask material move in and out with each breath.

For more information:

CDC Updated Recommendation for Face Masks on Travel and Transportation

May 3, 2022: The Centers for Disease Control and Prevention (CDC) issued a statement that everyone aged 2 and over should continue to wear well-fitting face masks or respirators on public transportation including airplanes, trains and inside transportation hubs.  This guidance is based on several factors: current data on the spread of the virus in the U.S. and around the world, current variants and their impact on disease severity and vaccine effectiveness, and projected trends of virus spread in the coming months.

The CDC reminds us that “it is important for all of us to protect not only ourselves, but also to be considerate of others at increased risk for severe COVID-19 and those who are not yet able to be vaccinated. Wearing a mask in indoor public transportation settings will provide protection for the individual and the community.” [68]

Court Ruling and Appeal: Federal Face Mask Mandate on Travel and Transportation

April 20, 2022: The U.S. Department of Justice has filed a notice of appeal in light of the determination by the Centers for Disease Control and Prevention (CDC) that wearing a mask “remains necessary to protect the public health.” The CDC continues to recommend at this time that people wear masks in all indoor public transportation settings. [66] [67]

April 18, 2022: In a narrow interpretation of the authority granted to the Centers for Disease Control and Prevention (CDC), a federal judge struck down the federal face mask mandate on airplanes, trains, busses, and other transportation hubs. In the opinion of the judge, the CDC exceeded its authority granted under the Public Health Service Act of 1944. The judge interpreted “sanitation” to mean cleaning property, not requiring people to take hygienic steps to prevent the interstate transmission of the virus. The judge also ruled that the transportation face mask mandate was established thirteen months after COVID-19 was declared a public health emergency with no opportunity for public comment. In the ruling, the judge did not consider the rapid changes and transmission of new variants and that there had been a change in administration.[62] [63] [64]

Due to the court ruling (April 18, 2022), effective immediately, the Transportation Security Administration (TSA) will no longer enforce its Security Directives and Emergency Amendment requiring mask use on public transportation and transportation hubs. The CDC continues to recommend that people wear masks in indoor public transportation settings at this time.[65]

Woman wearing a face mask and sitting on luggage in an almost empty airport.
TSA: Face Masks, Travel and Transportation Mandate and Extensions

At the recommendation of the Centers for Disease Control and Prevention (CDC), the Transportation Safety Administration (TSA) initial face mask requirement went into effect on February 1, 2021 with an expiration date of May 11, 2021.[34] There were several extensions of the security directive calling for face masks to be worn on planes, buses, trains, and other forms of public transportation traveling into, within, or outside of the United States. This included all U.S. transportation hubs such as airports and stations for trains and buses. The transportation network included airports, onboard commercial aircraft, on over-the-road buses, and on commuter bus and rail systems.

  • April 13, 2022: Extended through May 3, 2022. [61]
  • March 10, 2022: Extended through April 18, 2022.
  • December 2, 2021: Extended through March 18, 2022. [50]
  • August 20, 2021: Extended through January 18, 2022. [48]

U.S. Department of Education Letter and Guidance on Face Masks

March 24, 2022: The U.S. Department of Education released a letter to parents and educators regarding the Centers for Disease Control and Prevention (CDC) new face mask guidance. In the letter, Secretary Miguel Cardona, Ed.D., emphasized that state and local education agencies are bound by federal law, including ADA Title II, Section 504 of the Rehabilitation Act of 1973, and the Individuals with Disabilities Education Act (IDEA) to ensure the inclusion of students with disabilities in the classroom, including those students who experience post-covid symptoms or long COVID. The Secretary urged extra precautions to protect students, friends, neighbors, or loved ones who are at increased risk of severe illness from COVID-19, including the wearing of properly fitting face masks and being tested prior to gathering, regardless of COVID-19 community levels. At any level of community spread, people who are with or around those with higher risk for serious illness, people with symptoms of COVID-19 or individuals who are not up to date on COVID-19 vaccinations who had exposure to someone with COVID-19 or have a positive test should take extra precautions to protect themselves and others. This includes quarantining for 5 days and properly wearing a well-fitting mask around others for 10 days.

School districts, schools, early childhood centers and homes, and classrooms may still choose to implement masking at any COVID-19 Community Level depending on their community’s needs, and individuals – including those at higher risk of severe outcomes from COVID-19 – located in communities at any COVID-19 Community Level may choose to mask at any time.

Federal civil rights laws require that schools consider the health and safety needs of their students to safely attend in-person. This includes expectations around masking in schools on a case-by-case basis to comply with the schools’ obligation to make reasonable modifications for particular students with disabilities under federal law. Depending on the circumstances, a school could decide that some degree of masking of students and staff is necessary as a reasonable modification to ensure that students with disabilities have equal access to in-person learning without incurring an elevated risk of hospitalization or death due to COVID-19. In addition to deciding that an individual student with specific circumstances or needs must wear a mask or a modified mask such as with a clear front, a school may determine it is also necessary for other individuals in school settings to wear masks, depending on the specific circumstances of the student with a disability and in consideration of relevant health guidance.[60]

CDC Face Mask Guidance by COVID-19 County Level
– February 25, 2022

The Centers for Disease Control and Prevention (CDC) issued new guidance on February 25, 2022 on wearing face masks to reduce the spread of COVID-19. The CDC will now rely on three indicators at the county level to determine if individuals should wear a face mask. [58]

  1. The number of new COVID-19 cases per 100,000 people in the past seven days. The guidance defines this as less than 200 cases per 100,000 or greater than 200 cases per 100,000 people.
  2. New COVID-19 admissions to hospitals per 100,000 people over a seven-day period.

    For areas with fewer than 200 new cases each day, the following indicators are used.

    • Low or green is less than 10 admissions in the past seven days per 100,000 people
    • Medium or yellow is between 10 and 19.9 admissions per seven days per 100,000 people
    • High or red is 20 or more hospital admissions per seven days per 100,000 people

    For areas with 200 or more new hospital admissions over a seven-day period.

    • Low or green is not applicable
    • Medium or yellow is less than 10 admissions per seven days per 100,000 people
    • High or red is greater than 10 admissions per seven days per 100,000 people
  3. The percent of staffed inpatient hospital beds occupied by COVID-19 patients

    For fewer than 200 new cases per day:

    • Low or green is less than 10% of bed occupancy
    • Medium or yellow is 10.0%-14.9% of bed occupancy
    • High or red is 15% or more beds are occupied by COVID-19 patients

    For areas with greater than 200 or more cases per day

    • Low or green is not applicable
    • Medium or yellow is less than 10% of bed occupancy
    • High or red is 10% or more beds occupied by COVID-19 patients
Know Your COVID-19 Community Level

The CDC has developed COVID-19 County Check tools to easily determine if your county is in the green (low), yellow (medium), or red (high) zone.[59]

  • GREEN (Low)
    For areas considered green, individuals no longer need to wear a face mask.  The CDC does recommend that individuals in green areas stay up to date with vaccinations and get tested if they believe they have symptoms.
  • YELLOW (Medium)
    For areas considered yellow, individuals no longer need to wear a face mask. Individuals at higher risk of illness due to disability and vaccination status should consult with their healthcare provider about whether they should wear a mask or take other precautions.
  • RED (High)
    For areas considered red, individuals should continue to wear masks in indoor public spaces, stay up to date with vaccines, and get tested if they show COVID-19 symptoms.  Individuals who are at higher risk of severe illness due to disability or vaccination status should take additional precautions.

NOTE: The CDC guidance recommends that people may continue to wear a mask at any time. People who have COVID-19 symptoms or who have had exposure to someone who has COVID-19 should wear a mask.

Guidance on Face Masks – January 14, 2022

The Centers for Disease Control (CDC) updated their guidance on face masks and respirators on January 14, 2022. Their guidance emphasizes that using a face mask of any kind is better than not wearing a mask at all. Wearing a mask is still one of the most important tools that we can use to prevent the spread of COVID-19. The CDC states that some masks and respirators offer higher levels of protection than cloth masks. These masks have multiple layers of non-woven material, have a “nose wire” to ensure proper fitting over the nose, and are fitted for the mouth and chin to prevent leaks. The guidance stresses that masks with a proper fit, without gaps, offer the best protection against COVID-19 transmission.[57]

The National Institute for Occupational Safety & Health (NIOSH) approves many types of filtering face masks, including N95, N99, P95, P99, P100, R95, R99, and R100 (More: entire list of NIOSH approved masks[52]).

NIOSH approved masks provide the highest level of protection. They seal tightly on your face when worn properly. These masks are evaluated against U.S. standards that include a quality requirement. NIOSH approved masks filter at least 95% of particulates. These masks are not worn with other masks, if wet or dirty, or if it is hard to breathe while using them. NIOSH masks have not been tested for use by children.

Some masks are tested to ensure a higher standard. The masks are labeled “Meets ASTM F3502, “meets workplace performance,” or “meets workplace performance plus.” Additional information can be found at: ASTM Standard Specification for Barrier Face Coverings [53] and CDC: New Masks for Workplaces [54].

Guidance on Face Masks for Children – January 14, 2022

The guidance from the Centers for Disease Control (CDC) from January 14, 2022 also updates face mask guidance for children. The CDC recommends that children 2 years or older who are unvaccinated or are not up to date on other vaccines, should wear face masks in indoor public spaces, including schools. As discussed in previous CDC guidance, face masks should be worn by people, regardless of vaccine status, in areas of substantial or high transmission. The guidance also recommends universal face mask wearing for all students, teacher, and staff in school settings. The guidance states that face masks or respirators should not be worn by children younger than age 2.

Guidance on Clear Mask Alternatives for People with Disabilities

The guidance from the Centers for Disease Control (CDC) outlines clear plastic panel mask alternatives for people who are deaf or hard of hearing, young students learning to read, students learning a new language, people with disabilities, and people who need the proper shape of the mouth for making appropriate vowel sounds. The U.S. Food and Drug Administration has approved the following clear face masks as determined to be as “substantially equivalent” surgical masks: The CommunicatorTM Facemask[55] and ClearMask[56]

State Mask Mandates

Although there are no longer any U.S. states with face mask mandates, people entering health care and long-term care facilities may still be required to wear face masks. Additionally, some courts and municipal governments continue to require face masks. Private entities may still impose face mask mandates to enter their business. For more on state guidance, we suggest this resource: State-by-State Guide to Face Mask Requirements – Source: AARP. Also available en español – Guía de requisitos sobre el uso de mascarillas y recubrimientos faciales de cada estado. [33]

Court Cases: ADA and Face Masks

Face masks have become a polarizing issue in the courts with both mask proponents and opponents citing disability as a reason for and against mask mandates. Given the dynamic nature of the pandemic and divergent lawsuits, we are unable to include all current litigation in this brief.  Below are highlighted three important cases regarding masks, disability, and the Americans with Disabilities Act (ADA).

Resurrection School v. Hertel

In a ruling handed down on August 23, 2021, the Sixth Circuit Court of Appeals upheld a district court ruling that refused to block a mask mandate put in place by the Michigan Department of Health and Human Services. Resurrection Catholic Elementary School sued Elizabeth Hertel, the Director of the Michigan Department of Health and Human Services, claiming the face mask mandate was a violation of their rights to free exercise of religion, equal protection, and due process, because face masks hide faces “made in God’s image and likeness.” Although the mask mandate in Michigan was lifted before this decision, the Sixth Circuit’s decision is important in the event a new mask mandate is imposed. The court relied on a rational basis test, saying the state has a legitimate interest to keep the public safe and that the mandate applied to all elementary schools and did not single out religious education institutions.[49]

Pletcher v. Giant Eagle Inc.

In another case decided on October 23, 2020, in the Federal District Court for the Western District of Pennsylvania, the Court denied a preliminary injunction in the case of Pletcher v. Giant Eagle Inc. If granted, the injunction would have required Giant Eagle Inc. to change its policy of requiring all customers to wear a face mask or other face covering inside their store. In this case, sixty-nine plaintiffs filed a class action suit claiming Giant Eagle Groceries were in violation of Title III of the ADA by denying access to customers who claimed they could not wear a face mask due to their disabilities. In the ruling, U.S. District Judge Nora Barry Fischer determined that the store’s face mask policy was a correct interpretation of the Pennsylvania Department of Health’s order that face masks are to be worn in public spaces and that those who cannot wear a face mask may instead wear a face shield. Giant Eagle noted in their defense that they had in place other modifications to policy and practice consistent with ADA Title III to accommodate customers with disabilities.[29]

Bunn v. Nike, Inc.

In July 2020, Bunn v. Nike Inc., San Francisco Superior Court, resulted in a class action settlement for customers who are deaf or hard of hearing. The suit claimed that Nike’s policy requiring all retail employees to wear face masks violated the ADA. In the settlement, Nike agreed to make the following changes to address the issues for customers who are deaf or hard of hearing: (1) reasonable modifications to policy, practice, and procedure by requiring employees to wear transparent face masks to provide effective communication; (2) providing guidance to employees about accommodating customers; and (3) posting signs at store entrances notifying customers they can request additional assistance.[41]

Is there a reason a person might not be able to wear a face mask?

The Centers for Disease Control and Prevention (CDC) states that a person who has trouble breathing, is unconscious, incapacitated, or otherwise unable to remove the face mask without assistance should not wear a face mask.[6]

Examples of a person with a disability who might not be able to wear a face mask

  • Individuals with asthma, chronic obstructive pulmonary disease (COPD), or other respiratory disabilities may not be able to wear a face mask because of difficult or impaired breathing. People with respiratory disabilities should consult their own medical professional for advice about using face masks. The Centers for Disease Control and Prevention (CDC) also states that anyone who has trouble breathing should not wear a face mask.[7]
    A woman fitting a face mask on a young child.
  • People with post-traumatic stress disorder (PTSD), claustrophobia (an abnormal fear of being in enclosed or narrow places), severe anxiety [8] may feel afraid or terrified when wearing a face mask. These individuals may not be able to stay calm or function when wearing a face mask.
  • Some people with autism are sensitive to touch and texture.[9]Covering the nose and mouth with fabric can cause sensory overload, feelings of panic, and extreme anxiety.
  • A person who has cerebral palsy may have difficulty moving the small muscles in the hands, wrists, or fingers. Due to their limited mobility, they may not be able to tie the strings or put the elastic loops of a face mask over the ears. This means that the person may not be able to put on or remove a face mask without assistance.
  • A person who uses mouth control devices such as a sip and puff to operate a wheelchair or assistive technology or uses their mouth or tongue to use assistive ventilators may be unable to wear a face mask.

If a person with a disability is unable to wear a face mask, do I still have to allow them in my business or government agency?

The number of federal, state and U.S. territories with face mask mandates and recommendations changes in response to current outbreak conditions.[33]

These mandates and recommendations vary by state. For the most part, the mandates and recommendations require face masks to be worn by people who are unvaccinated and not fully vaccinated inside public spaces, public transportation, workplaces, congregate settings, and any situation that where six feet of social separation cannot occur. These mandates and recommendations also include exemptions for children, people with disabilities or medical conditions, and situations where face masks interfere with effective communication.[26] These state mandates and recommendations do not override the consideration of reasonable modifications to policy, practice, and procedure required by the Americans with Disabilities Act (ADA). Many private businesses have also developed policies requiring the use of face masks. The ADA does not have any rules that address the required use of face masks by state and local governments or private business owners.
Woman wearing a face mask and gloves delivering a shopping bag.

If a person with a disability is not able to wear a face mask, state and local government agencies and private businesses must consider reasonable modifications to a face mask policy so that the person with the disability can participate in, or benefit from, the programs offered or goods and services that are provided. A reasonable modification means changing policies, practices, and procedures, if needed, to provide goods, services, facilities, privileges, advantages, or accommodations to an individual with a disability.[10] It is important to focus on how to provide goods or services to a customer with a disability in an equal manner. This can be done by reasonably modifying your policies, practices, or procedures.

The requirement to modify a policy, practice, or procedure does not include individuals without disabilities, as they are not protected under the Americans with Disabilities Act (ADA).

Examples of reasonable modifications to a face mask policy

  • Allow a person to wear a scarf, loose face covering, or full face shield instead of a face mask.Man wearing a face shield.
  • Allow customers to order online with curbside pick-up or no contact delivery in a timely manner.
  • Allow customers to order by phone with curb-side pick-up or no contact delivery in a timely manner.
  • Allow a person to wait in a car for an appointment and enter the building when called or texted.
  • Offer appointments by telephone or video calls.

Are there any situations when an agency or business does not have to provide a reasonable modification to the face mask policy?

There are three reasons under the Americans with Disabilities Act (ADA) that a state or local government agency or private business may not have to provide a reasonable modification.

Fundamental Alteration

A state or local government agency or private business may not have to provide a reasonable modification if the modification would change the nature of the service, program, activity, goods, services, or facilities.[11][12]

A fundamental alteration is a change to such a degree that the original program, service, or activity is no longer the same.[13]

  • Example of a fundamental alternation: A customer requests that a store deliver her items to her home as a reasonable modification so that she does not have to enter the store. The store does not offer a home delivery. Therefore, the store would not have to grant the request for home delivery since it would be a fundamental alteration of their services.

Undue Burden

A state and local government agency or private business is not required to take any action that it can demonstrate would result in an undue financial or administrative burden. An undue burden is a significant difficulty or expense.[14][15]

  • Example of an undue burden: A person would like to visit city library when no other customers are present. He requests that staff allow him in 30 minutes before the building opens. This might be an undue burden for the library due to limited staffing.

The requirements for showing an undue financial or administrative burden are different for a state or local government agency and a private business.

State or Local Government Agency and Undue Burden

The head of a state or local government agency or his/her designee are the only ones who can make the decision as to whether a reasonable modification is an undue burden. The decision-maker must provide information in writing with the reasons why the modification is an undue burden.

In determining whether financial and administrative burdens are excessive, all financial resources used to fund the programs, services, or activities of the public entity must be considered. If an action would result in an undue burden, the state or local government agency must look for other ways to ensure that individuals with disabilities receive the benefits and services of the program or activity.[27]

Private Business and Undue Burden

A private business must consider the following things to determine if an action or reasonable modification would result in an undue burden.

  1. The nature and cost of the reasonable modification.
  2. The overall financial resources of the business making the reasonable modifications; the number of people employed at the business; the effect on expenses and resources of the business; legitimate safety requirements that are necessary for safe operation, including crime prevention measures; or the impact otherwise of the action upon the operation of the site.
  3. For businesses with multiple sites, consideration is given to the degree of geographic separateness and the administrative or financial relationship of the sites that will make the modification more difficult or expensive.
  4. If applicable, the overall financial resources, size, number of employees, and type and location of facilities of the parent corporation or entity (if the business involved in the reasonable modification is part of a larger business).
  5. If applicable, an assessment is made of the parent corporation or entity’s type of operation, including the structure and functions of the workforce.[28]

Direct Threat

A state or local government agency or private business may not have to provide a reasonable modification to the face mask policy if the individual with a disability poses a direct threat to the health or safety of others.

A direct threat is a significant risk to the health or safety of others that cannot be eliminated by a modification of policies, practices, or procedures, or by the provision of auxiliary aids or services.[16][17] The determination that a person poses a direct threat to the health or safety of others may not be based on generalizations or stereotypes about the effects of a particular disability. It must be based on an individual assessment that considers the particular activity and the actual abilities and disabilities of the individual.[18] [19]

During a pandemic, state and local government agencies and businesses should use the most up to date information from the Centers for Disease Control and Prevention (CDC), the U.S. Department of Labor (DOL) Occupational Safety and Health Administration (OSHA), and the state public health agencies. Because the pandemic threat to health and safety will vary by region, you should consult your local public health agency for guidance.[20]

To limit a direct threat from the COVID-19 pandemic, a state or local government agency or private business may impose legitimate safety requirements necessary for safe operation. However, these groups must ensure that their safety requirements are based on real, specific risks, not on speculation, stereotypes, or generalizations about individuals with disabilities.[21][22] These safety requirements must be consistent with the ADA regulations about direct threat and legitimate safety requirements, and consistent with advice from the CDC and public health authorities.

To limit a direct threat and have safety requirements in place to address the COVID-19 pandemic, state and local government agencies and businesses may:

  • Develop policies and procedures for prompt identification and isolation of people with symptoms of COVID-19, including employees and customers.
  • Offer face masks to employees and customers.
  • Enforce social distancing guidelines.
  • Inform customers about symptoms of COVID-19 and ask sick customers to minimize contact with workers and other customers until they are healthy again.
  • Post signs with COVID-19 information in places that sick customers may visit (e.g., pharmacies, hospitals, public health agencies, grocery stores).
  • Include COVID-19 information in automated messages sent when messages are sent to customers via phone messages, text, or email; and/or
  • Limit customers in-person access by customers to the buildings operated by a state or local government agency or private business, as appropriate.

How should I respond to a request for a reasonable modification to the face mask policy?

The U.S. Department of Justice (DOJ) issued two settlement agreements that provide guidance on the reasonable modification decision-making process.[23][24]

  1. A state or government agency should designate at least one person, and a back-up, who are authorized to receive and review requests for reasonable modifications. The decision-maker for a state or local government agency is the head of the public agency or their designee.[25] Although not required, private businesses are encouraged to designate a person to receive and review requests for reasonable modifications and make decisions.
  2. After receiving a request for a reasonable modification, talk with the individual with a disability to learn why the person needs to modify the face mask policy and to find a solution that meets ADA requirements. Decisions about reasonable modifications should be made in a timely manner.
  3. After the discussion, the government agency or private business may:
    1. Agree to the request. In most cases, because the interaction is brief, businesses such as department stores, grocery stores, and pharmacies or government agencies such as the courthouse or drivers’ services, will be able to agree to the request. Generally, state and local governments may not ask for documentation of disability as the interactions are brief and in doing so would amount to unequal treatment of people with disabilities.
    2. Deny the request. If a request for modifications is denied, a state or local government agency or private business is encouraged to provide a written statement as to why the request was denied, provide a copy to the person with a disability, and keep a copy on file.
    3. In some unique circumstances where the interaction is not brief (e.g., a college or university that offers students extended residency in dormitories), the school may ask students with non-obvious disabilities for medical documentation about the person’s disability that is narrowly tailored and is absolutely necessary to:
      1. Verify that the individual meets the ADA definition of disability (i.e., has a physical or mental impairment that substantially limits one or more major life activities); or
      2. Describe the needed modification; or
      3. Show the relationship between the individual’s disability and the need for the requested modification.

Medical Documentation

The U.S. Department of Justice (DOJ) nor other federal agencies with enforcement authority have not provided specific guidance about whether a store can or cannot ask for medical documentation about a person’s inability to wear a face mask due to a disability. Generally, guidance from the U.S. Department of Justice has not allowed asking for documentation for accommodations at businesses where interactions are brief, such as grocery stores or pharmacies. Some places such as medical offices or hospitals may need the medical documentation because a person who is not wearing a face mask may infect other people who are sick.

Best Practice Tip

Prepare a list of possible alternatives to a face mask policy that you can share with people with disabilities who request a reasonable modification to your policy. In this brief: Examples of reasonable modifications to a face mask policy.

Summary

As the COVID-19 pandemic continues and new variants emerge, state and local government agencies and private businesses must make reasonable modifications to allow people with disabilities to access the goods and services they offer. Following ADA requirements for reasonable modifications within federal, state, and local health and safety guidelines will allow you to keep employees and customers safe, reduce new infections, and still provide goods and services to everyone.

Resources

For more about your rights under the Americans with Disabilities Act (ADA) and how they apply to the coronavirus (COVID-19) pandemic: ADA, Disability & COVID-19 Resources (adacovid19.org)

For additional information on face coverings and the ADA:

ADA National Network

For questions and training on the Americans with Disabilities Act (ADA),
contact your regional ADA center at 1-800-949-4232
or visit the ADA National Network website: adata.org
— All calls are confidential. We do not give medical or legal advice. [Refer to: Disclaimer]

Citation

Williamson, P. R., Morder, M. J., & Whaley, B. A. (2020). The ADA and Face Mask Policies [Fact sheet]. Up to Date: May 4, 2022. Retrieved from https://adasoutheast.org/disability-issues/ada-and-face-mask-policies/

Endnotes

[1] Centers for Disease Control and Prevention (CDC). (2021, July 27). When you’ve been fully vaccinated – how to protect yourself and others. Retrieved July 28, 2021, from https://www.cdc.gov/coronavirus/2019-ncov/vaccines/fully-vaccinated.html

[2] World Health Organization (WHO). (2020, April 27). WHO Timeline – COVID-19. Retrieved June 1, 2020, from https://www.who.int/news-room/detail/27-04-2020-who-timeline—covid-19

[3] Centers for Disease Control and Prevention (CDC). (2020, May 12). Clinical Questions about COVID-19: Questions and Answers. Retrieved June 4, 2020, from https://www.cdc.gov/coronavirus/2019-ncov/hcp/faq.html#Transmission

[4] Centers for Disease Control and Prevention (CDC). (2021, August 13). Your Guide to Masks. Retrieved August 13, 2021, from https://www.cdc.gov/coronavirus/2019-ncov/prevent-getting-sick/about-face-coverings.html

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[37] Centers for Disease Control and Prevention (CDC). (2021, June 10). Requirement for Face Masks on Public Transportation Conveyances and at Transportation Hubs. Retrieved update February 25, 2022 from https://www.cdc.gov/quarantine/masks/face-masks-public-transportation.html

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[42] Centers for Disease Control and Prevention. (2021, July 27). Interim public health recommendations for fully vaccinated people. Retrieved July 28, 2021 from https://www.cdc.gov/coronavirus/2019-ncov/vaccines/fully-vaccinated-guidance.html

[43] Centers for Disease Control and Prevention. (2021, July 27).  Delta Variant: What We Know About the Science. Retrieved August 12, 2021 from https://www.cdc.gov/coronavirus/2019-ncov/variants/delta-variant.htmll

[44] Centers for Disease Control and Prevention. (2021, August 4). Families with Vaccinated and Unvaccinated Members. Retrieved August 12, 2021 from https://www.cdc.gov/coronavirus/2019-ncov/your-health/about-covid-19/caring-for-children/families.html

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[49] Justia U.S. Case Law Federal Courts of Appeals Sixth Circuit 2021. (2021, August 23). Resurrection School v. Hertel, No. 20-2256 (6th Cir. 2021). Retrieved August 27, 2021 from https://law.justia.com/cases/federal/appellate-courts/ca6/20-2256/20-2256-2021-08-23.html

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[53] ASTM International (2021, February 15). ASTM Standard Specification for Barrier Face Coverings. Retrieved January 19, 2022 from https://www.astm.org/f3502-21.html

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[62] National Public Radio (NPR). (2022, April 18). TSA will no longer enforce travel mask mandate after a federal judge strikes it down. Retrieved April 19, 2022 from https://www.npr.org/2022/04/18/1093364146/a-florida-judge-overturns-the-cdcs-mask-mandate-for-planes-and-other-public-tran

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Disclaimer:

These materials do not constitute legal advice and should not be relied upon in any individual case. Please consult an attorney licensed in your state for legal advice and/or representation. These materials were prepared by the legal research staff of the Burton Blatt Institute (BBI) at Syracuse University in partnership with the Southeast ADA Center to highlight legal and policy developments relevant to civil rights protections and the impact of court decisions in the Southeast Region under the Americans with Disabilities Act (ADA). These materials are based on federal disability rights laws and court decisions in effect at the time of publication. Federal and state disability rights law can change at any time.  In addition, state and local laws and regulations may provide different or additional protections. Materials are intended solely as informal guidance, and are neither a determination of your legal rights nor responsibilities under the ADA or other federal, state, and local laws, nor binding on any agency with enforcement responsibility under the ADA. The accuracy of any information contained herein is not warranted. Any links to external websites are provided as a courtesy and are not intended to nor do they constitute an endorsement of the linked materials.

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