Press "Enter" to skip to content

The ADA and Face Mask Policies

Overview

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).

Last Update: 9/15/2023

Contents of Fact Sheet

Introduction

The COVID-19 pandemic 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. [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 wear a face mask. 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. For more information: State Mandates in Archives and Resources.

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: Latest COVID-19 Guidance

The information from the Centers for Disease Control and Prevention (CDC) and other authorities changed as the COVID-19 pandemic evolved and as new variants emerge. Therefore, private businesses and government agencies should review the most current information at the CDC COVID-19 website (cdc.gov).

State Mask Mandates

Over the course of the pandemic, many states had mask mandates at some point. The last statewide orders broadly requiring people to wear masks in indoor public places ended in early 2022. Into 2023, some U.S. states had mask mandates for people entering health care and long-term care facilities. Also, some states have legislation to prevent local governments, schools, and/or businesses from enacting mask mandates. For more on state guidance and long-term care facilities, we suggest these resources.

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.   This brief highlights some important cases regarding masks, disability, and the Americans with Disabilities Act (ADA).

G.S. v. Bill Lee (August 2023)

On August 14, 2023, the Sixth Circuit Court of Appeals upheld a lower court decision which granted a preliminary and permanent injunction and a temporary restraining order granted to students with disabilities in the Shelby County, Tennessee school district. The injunctions struck down a 2021 Executive Order from Governor Bill Lee calling for an end to mandatory mask mandates in Tennessee public schools. The students claimed the Executive Order violated both the Americans with Disabilities Act (ADA) and Section 504 of the Rehabilitation Act, discriminating against them and denying them a free and appropriate public education.[70]

More Court Cases: ADA and Face Masks

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/

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.

en_USEnglish
en_USEnglish