September 28, 2020

Volume X, Number 272

September 28, 2020

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No Mask, No Service: Supermarket Sued for Disability Discrimination Over Strict Face-Covering Policy

On May 26, 2020, a woman with an alleged respiratory disability filed suit under the Americans with Disabilities Act (ADA) against a supermarket chain in Pennsylvania after she was denied entry because she could not wear a face mask. This lawsuit marks a growing trend of disability access lawsuits challenging face mask policies.

The Pennsylvania face-covering order at issue in the lawsuit generally requires that public accommodations deny access to individuals not wearing masks, but makes an exception for individuals who cannot wear masks due to medical conditions. The supermarket chain has taken a stricter approach, requiring that all guests—without exception—wear face masks to shop in its stores.

The supermarket chain at the center of the suit in this case is not alone. Many other retailers have implemented face mask policies that do not provide an exception for individuals who cannot wear face coverings due to medical reasons. This raises a question: is such a face mask policy lawful?

The ADA requires “reasonable modifications” of policies, practices, or procedures, such as the face mask rule, when necessary to provide goods and services to individuals with disabilities. However, the ADA does not require a public accommodation to permit an individual to participate in, or benefit from, the goods or services if that individual poses a “direct threat” to the health or safety of others. Whether something rises to the level of direct threat depends on various factors and requires an individualized assessment of the medical evidence. The business carries the burden to prove the direct threat defense. Does the risk of spreading the coronavirus (SARS-CoV-2) qualify as a “direct threat”? Cases like this may start to provide an answer to that question.

Key Takeaways

Public accommodations that elect to implement policies requiring all guests to wear face coverings without exception, particularly where a state or local order provides for medical exceptions, may want to thoroughly evaluate the “direct threat” in order to be in the best position to defend against any ADA challenge. Public Accommodations that deny entry to customers who cannot wear face masks may want to consider offering other comparable services, such as online ordering, curbside pickup, or special shopping hours, to excluded customers.

© 2020, Ogletree, Deakins, Nash, Smoak & Stewart, P.C., All Rights Reserved.National Law Review, Volume X, Number 157


About this Author

Amber Roller  Labor and Employment and Disability Access attorney at Ogletree Deakins

Amber Roller is an associate in the Labor and Employment practice in the firm's Los Angeles office. Ms. Roller received her undergraduate degree from the University of California, Los Angeles (UCLA). She went on to receive her J.D. from Southwestern Law School in 2010, where she graduated with honors. While attending Southwestern Law School, Ms. Roller was a member of the Southwestern Law School Moot Court Honors Program. Prior to practicing Labor and Employment, Ms. Roller practiced civil litigation in the area of insurance defense.

In her employment litigation practice, Amber...