Can the government legally force you to wear a mask?

What disabilities must you prove to avoid having to wear a mask? Can an employer force you to wear one? Do you have a constitutional right to not?

June 22, 2020

Covering COVID-19 is a daily Poynter briefing of story ideas about the coronavirus and other timely topics for journalists, written by senior faculty Al Tompkins. Sign up here to have it delivered to your inbox every weekday morning.

If we want to reopen schools, we must change the trends now

With schools from elementary to universities trying to find a way to open their doors in six to eight weeks, America has to find a way to reverse the coronavirus trend that just grew worse in almost half the country.

This weekend, the COVID-19 pandemic spread at or near record levels in 22 states. In some states, the new cases set records. In others, the new cases were the highest measured since the first of May.

(Graphic from The New York Times)

Can the government legally force you to wear a mask?

The answer is “yes.” In a pandemic, governments have the authority to do a lot of things that would otherwise be questionable.

Think of it like this: The government has the right to ban smoking in public places because your smoking can affect my health. And some places have signs that say, “No shirt, no shoes, no service.” Just add “no mask” to the sign.

However, there are exceptions. If you cannot wear a mask for health reasons or if you are in a “protected class,” then you might get a mask pass. Syracuse.com turned to a prosecutor for advice:

“All businesses have the right to refuse service so long as it is not violating one of those protected classes,” said Robert Mascari, chief assistant district attorney in Madison County. “You can’t refuse to serve me because I’m half Italian and half Irish. You can refuse to serve me if I’m being an idiot.”

Anti-maskers (I just made up that word) have claimed a “disability” to avoid wearing face masks.

Doron Dorfmann, a Syracuse University law professor who specializes in disability law, told Syracuse.com:

There may be legitimate disabilities that would prevent someone from wearing a mask: someone with autism who has sensory issues, for example, or someone with a respiratory problem for which a mask would make breathing difficult.

Under the (federal Americans with Disabilities Act), he said, store managers must be cautious in questioning anyone who says they have a disability. The manager, for example, can’t ask what the disability is.

Shop keepers can ask two questions of that person, Dorfman said: “Is (not wearing a mask) an accommodation? What kind of benefit do you get from not wearing a mask?”

What disabilities must you prove to avoid having to wear a mask?

When a local or state government issues a “must wear” order, it gives individual businesses a lot of legal cover to enforce mask requirements. Without the government’s order, an individual business might run into some trouble denying customers who claim to have disabilities that prevent them from wearing masks.

Face masks create a real problem for individuals who rely on lip reading to communicate. Retailers might try to provide sanitized dry erase boards or turn to text messaging with customers to show they want to accommodate everyone.

The National Law Review warned that businesses that exclude non-face-mask-wearing customers who claim a disability have to reach a pretty high legal bar:

The ADA permits a retailer to deny goods or services to an individual with a disability if their presence would result in a “direct threat” to the health and safety of others, but only when this threat cannot be eliminated by modifying existing policies, practices or procedures or permitting another type of accommodation. Whether a customer poses direct threat is an individualized, fact-sensitive inquiry. If a business does not have a clear policy of turning away customers who refuse to wear face masks, and turns away an individual for that reason, the business must be prepared to identify how/why that individual’s specific, observable, condition/behaviors made them a “direct threat”.

So, what would that “direct threat” look like? The ADA says that a direct threat is “a significant risk to the health or safety of others that cannot be eliminated by a modification of policies.”

It might be difficult to deny service to a person who does not have COVID-19 symptoms. The Law Review said:

For example, if the person exhibited generally recognized symptoms of COVID-19 (such as aggressive coughing compounded with profuse sweating or visible difficulty breathing), refusal of service without a mask on an individualized basis may be justifiable. Conversely, a business could be hard-pressed to successfully argue that a customer without a face mask posed a “direct threat” if he or she was asymptomatic or if there was some form of accommodation that would have allowed the person to be served (e.g., allowing someone to wear a scarf instead of a mask). Upon refusing service on “direct threat” grounds, the store should contemporaneously document its actions and justifications in the event their decision is later challenged.

Can an employer force you to wear a face mask?

The answer again is “yes,” under Occupational Safety and Health Administration statutes that say:

“Employers may choose to ensure that cloth face coverings are worn as a feasible means of abatement in a control plan designed to address hazards from SARS-CoV-2, the virus that causes COVID-19. Employers may choose to use cloth face coverings as a means of source control, such as because of transmission risk that cannot be controlled through engineering or administrative controls, including social distancing.”

If the requirement is for you to wear personal protective equipment, a higher level of protection, then the employer must furnish it (see OSHA’s PPE standard 29 CFR 1910.132). But the employer is not required to give you a cloth face mask. PPE’s generally must meet standards set by the American National Standards Institute or, in some cases, the Food and Drug Administration.

Do you have a constitutional right not to wear a mask?

The answer is “no.”

Governments have the power to regulate in the name of safety. In a pandemic, state governments really are the key players.

The American Bar Association explained:

Under the U.S. Constitution’s 10th Amendment and U.S. Supreme Court decisions over nearly 200 years, state governments have the primary authority to control the spread of dangerous diseases within their jurisdictions. The 10th Amendment, which gives states all powers not specifically given to the federal government, allows them the authority to take public health emergency actions, such as setting quarantines and business restrictions.

As a reminder, the 10th Amendment says, “Powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.”

States also retain significant emergency powers to regulate public safety and health through their own state constitutions and legal precedent dating back to the early 1800s.

The federal government’s quarantine powers are limited to those things the feds control, like ports of entry, airspace and such. States each have specific laws that set out who has what authority. Here is a list of each state’s rules.

But there is a legal argument around something called “the Preemption Doctrine” (if you really care, see the Supremacy Clause of the Constitution. U.S. Const. art. VI., § 2). The preemption doctrine refers to the idea that a higher authority of law will displace the law of a lower authority when the two authorities come into conflict. Let’s say a state says, “We are in an emergency and you have to wear a mask” (as California did). A local government can’t come along and say, “Forget what the state said.” Generally, then, an act of Congress preempts state constitutions and an FDA ruling preempts state court rulings and so on.

If you want to know the specific laws affecting government quarantine powers, go here.

Masks, minorities and men

CNN explored the issue of whether racial and ethnic minorities are reluctant to wear masks because they are concerned they will be targeted or profiled as being suspicious. About a month ago, an Ohio health official had to apologize for guidelines he issued titled “COVID-19 General Guidance on Wearing Face Mask for African Americans and Communities of Color” in which he suggested avoiding certain mask colors and designs that might have “gang symbolism.”

It is a really interesting question to ask public officials how they would respond to concerns from people who fear being targeted by police if they wear masks given that, just a few months ago, it was illegal to wear a mask in public.

One study found that men are more reluctant than women to wear masks because men consider masks to be “uncool.” Voice of America reported:

The study, conducted by researchers Valerio Capraro from Middlesex University London and Hélène Barcelo from the Mathematical Sciences Research Institute in Berkeley, California, found that American men were more likely to leave the house without a mask, saying wearing one is a sign of “weakness” and “not cool.”

Another survey by the Gallup/Knight Foundation, conducted from April 14 to 20, found that 38% of men never wore a face mask or cloth face covering outside their homes.

But why “force” people to wear masks?

If reasoning alone was enough to convince people to care for themselves and others, then the experts could post the evidence that masks reduce the transmission of the virus and that would be enough. But research on seat belt use and childhood vaccinations, for example, shows that when governments make safety mandatory, people pay more attention. And when governments widen the list of exemptions, people take advantage of those exemptions.

The demographics are trending younger

Some of the earliest states to reopen their economies are now recording a growing number of positive COVID-19 cases in younger adults. Florida, South Carolina, Georgia and Texas are all warning about this trend. Florida Gov. Ron DeSantis said Saturday cases are “shifting in a radical direction” toward populations in their 20s and 30s.

(Data from Florida Department of Health, chart from The Tampa Bay Times)

In South Carolina, close to one out of five of the state’s cases come from people ages 21 to 30.

A TV station produced a “What’s Your Risk?” quiz

KGO in San Francisco produced a cool COVID-19 quiz that lets you test how knowledgeable you are about your risk.

The tool proposes a scenario and asks the user to predict what level of risk it is. As much as I read and write about COVID-19, I still missed some of these answers, and the one about play dates I missed by about a mile. I could imagine doing versions of this on radio, TV and in podcasts.

(Screenshot, KGO San Francisco)

The ice cream meltdown during COVID-19

The summer ice cream season makes or breaks shops in much of the country, so to stay in business they have to be selling stuff full-tilt right now. But because of customer restrictions, full speed is really half speed, and that won’t be enough. Slate reported:

“The ability for ice cream store owners to keep up in a way that is both legally mandated and accepted by the community has been a struggle,” said Steve Christensen, executive director of the National Ice Cream Retailers Association. “Many shops are working twice as hard for half as much.”

Restaurants have been able to make up part of their revenue with take-out orders. But when you are selling stuff that melts, the Slate story said, that’s a problem:

Unlike pizza or noodles, ice cream isn’t particularly well-suited for the sort of takeout and delivery operations that most restaurants have had to rely on during the pandemic. “It’s easy to deliver ice cream if it’s a very short distance, but once you’re going 20 minutes away, you’re going to experience melting,” said ice cream store owner Judy Herrell. “God forbid you order a milkshake.” Some to-go orders also get difficult if they include sauces like hot fudge or penuche, because the final assembly has to happen exactly when the customer arrives or else it’ll melt as well. When you have a backlog of orders all being placed over the phone, it becomes difficult to coordinate. In addition, Herrell notes that some people don’t see ice cream as a takeout food since lounging in the parlor itself is often an important part of the experience.

Three ways the Saharan dust plume might affect you

A huge plume of dust from the Sahara Desert is making its way westward across the Atlantic Ocean toward America. It is not unusual, but it is creepy looking.

(Nasa Worldview)

The dust should reach the U.S. by Thursday, according to The Weather Channel.

(Forecast map from The Weather Channel)

How might it affect you?

  1. You may see stunning sunrises and sunsets as the dust disperses the sun’s rays.
  2. The dust plume holds down tropical storm activity because hurricanes love humid and calm conditions. The dust plume is dry and the air around it is active.
  3. People with allergies might find themselves reaching for tissues more in the next week.

We’ll be back tomorrow with a new edition of Covering COVID-19. Sign up here to get it delivered right to your inbox.

Al Tompkins is senior faculty at Poynter. He can be reached at atompkins@poynter.org or on Twitter, @atompkins.

Comments

  • You forgot to mention the doctrine of parens patriae as a reason why states can mandate wearing of face masks. This is the same doctrine that is invoked during evacuation orders. The state has the responsibility to ensure the protection of all citizens, including those that are unable to make decisions for their own safety, health, and welfare. This is why civil commitment of mentally ill people is legal in all 50 states. If the State can involuntarily hospitalize suicidal people for their own protection, it’s clear that the State can most certainly mandate that a citizen wear a face mask for their own protection when they are in danger of a deadly virus.

This site uses Akismet to reduce spam. Learn how your comment data is processed.