The ADA and Small Business: Frequently Asked Questions About Face Mask Policies and Serving Customers with Disabilities.
The Great Plains ADA Center has received many questions regarding face mask policies and the ADA from the business community. We have collected a summary of these questions and our responses to guide businesses wanting to ensure their face mask policies comply with the ADA.
Please note: No specific guidance on face mask policies and the ADA has been issued by the U.S. Dept. of Justice at the present time. Our technical assistance on this particular issue is based on our understanding of the ADA as well as guidance and recommended practices from other regional ADA Centers, attorneys, disability organizations, and federal agencies. This document will continue to be updated to reflect new information.
FAQs
1) I've heard that a person carrying a card issued from the U.S. Dept. of Justice does not have to wear a face mask, and I could be fined if I do not let this person shop freely without a face mask.
This information is false. The U.S. Department of Justice released the statement below in response to this particular misleading information circulating on the internet.
Assistant Attorney General for the Civil Rights Division Eric Dreiband reiterated today that cards and other documents bearing the Department of Justice seal and claiming that individuals are exempt from face mask requirements are fraudulent.
Inaccurate flyers or other postings have been circulating on the web and via social media channels regarding the use of face masks and the Americans with Disabilities Act (ADA) due to the COVID-19 pandemic. Many of these notices included use of the Department of Justice seal and ADA phone number.
As the Department has stated in a previous alert, the Department did not issue and does not endorse them in any way. The public should not rely on the information contained in these postings.
The ADA does not provide a blanket exemption to people with disabilities from complying with legitimate safety requirements necessary for safe operations.
2) My business is very small, and I only have one employee. Am I covered by the ADA? Do I have to make accommodations to customers with disabilities?
Businesses are covered by Title III of the Americans with Disabilities Act. There is no exception in Title III based on the number of employees or facility size. Businesses covered by the ADA must not discriminate based solely on a customer's disability. Businesses must also provide:
- Reasonable modifications to their policies and practices to ensure customers with disabilities can access their goods and services.
- Effective communication through auxiliary aids and services ensuring that communication with people with disabilities is as effective as communication with people without disabilities.
- Access to goods and services through the removal of physical barriers such as steps, narrow doorways, and high thresholds, when readily achievable.
3) Does the ADA require me to have customers wear face masks in my store?
No. The ADA applies to how face mask policies are carried out to ensure they are not discriminatory against people with disabilities. Many states and local governments have issued regulations and/or ordinances that require people to wear face masks in public places. Other states and local governments have left policies up to individual businesses. The Great Plains ADA Center highly recommends that businesses stay up to date on face mask policy recommendations and rules issued by their state and local governments. Businesses may use this FAQ and other resources to determine how to apply face mask policies in a way that does not discriminate against people with disabilities.
4) If a customer can't wear a mask because of their disability, do I have to make an exception to the face mask policy?
The U.S. Department of Justice has stated that "The ADA does not provide a blanket exemption to people with disabilities from complying with legitimate safety requirements necessary for safe operations."(See question 1) A business owner does not have to automatically waive a face mask requirement unless there is a local ordinance or state law specifically requiring the business to do so.
5) Are there people who really can't wear face masks because of their disabilities?
Yes. For many individuals with different types of disabilities the effects of wearing a mask are far more severe than being slightly uncomfortable. Wearing a face mask can have a significant impact on their health, wellbeing, and ability to function. For example, a person with a respiratory disability such as asthma or chronic obstructive pulmonary disease (COPD) may not be able to wear a face mask because doing so causes difficulty in breathing. People with anxiety disorders and post-traumatic stress disorder (PTSD) may develop severe anxiety when wearing a face mask. People who have sensory issues may find the constant sensation of a mask on their face very difficult to tolerate.
6) What should I do if a person requests to not wear a face mask because of their disability?
At this time, we recommend that a business follow the same criteria that the ADA requires in any other request for modification of policy. That is, determine if the modification is "reasonable" based on whether providing it would be an undue financial burden, change the fundamental nature of the business, or cause a direct threat to the health and safety of others.
Denying a Modification in Policy based on "Direct Threat"
Title III regulations of the ADA state that “denying a policy modification request because it would pose a direct threat to the health and safety of others must be based on legitimate evidence”. Sources for evidence of a legitimate threat can include guidance from public health authorities such as the U.S. Public Health Service, the Centers for Disease Control, and the National Institutes of Health, including the National Institute of Mental Health. (Title III Section 36.28). Based on this guidance in the regulations, current public health guidelines can be used to establish that there is legitimate evidence that face masks are necessary to slow or stop the spread of COVID-19 in public places. Public health guidelines regarding the coronavirus pandemic may change over time, and business policies should reflect the changes.
However, even if face mask exemptions may be denied on the basis of “direct threat”, there is still an obligation under the ADA to determine if there are other modifications that could be provided to access goods and services.
Some examples include but are not limited to:
- Providing customers with curbside pick-up or no contact home delivery.
- Allow a customer to wear a full face shield instead of a face mask. Scarves or looser coverings may also be appropriate.
- Letting customers order services online or by phone.
- Conducting individual appointments, such as a tax consultation, remotely.
7) My business does not have a face mask policy, but our local government just passed an ordinance requiring people to wear face masks in public places. Because there is a local ordinance that our business must follow, do we still have to provide reasonable modifications to people who can't wear a face mask due to a disability?
Yes. ADA regulations would still require your business to offer alternative ways to provide access to goods and services. However, you are not required to take any actions that would result in an undue financial hardship, change the fundamental nature of the business, or cause a direct threat to health and safety to others, including your employees.
8) Our business provides a face mask to customers that are not wearing masks as they enter the store. A customer told me that she can't wear a face mask. Am I allowed to ask if the reason is because of a disability?
Yes, you may ask a customer if they cannot wear a face mask due to disability. But be careful not to ask questions about the nature or severity of the disability. This response is based on general guidance regarding modification of policy in Title III of the ADA. Currently, there is no specific guidance regarding face mask inquiries and people with disabilities from the U.S. Department of Justice.
9) A few individuals have requested curbside service because they can't wear a mask due to disability. I'm not so sure if this is really the case. Can I require a note from a doctor or some other form of documentation?
We recommend that businesses treat requests for modifications to a face mask policy as they would other requests for policy modification. Generally, when a person with a disability asks for a relatively simple modification, the individual is not required to provide any type of documentation. As a rule people with disabilities do not carry documentation of disability or a doctor's note. Considering that many customers have different kinds of needs that may require additional customer service, singling out people with disabilities to provide documentation may appear discriminatory.
This interpretation is supported by a recent article, A 'Get Out of Masking Free' Card Based on the ADA? , which appeared in the National Law Review. Authors Metcalf and Paul, state “In the non-employment context (i.e., a customer relationship), a business generally cannot demand documentation confirming that an individual is disabled or needs a particular accommodation, so businesses may run the risk of alienating customers with disabilities, or even draw a bona fide complaint to the DOJ or a lawsuit, by requiring a showing of such proof.”
More on Documentation:
Please note that the questions and answers in this document are targeted to small businesses such as retail stores, restaurants, and theaters. Many other types of entities are covered by Title II and III of the ADA including schools, hospitals and clinics, daycare facilities, and camps. These entities may have instances when requiring documentation of disability and/or medical testing would be appropriate under the ADA. Future Q & A’s from the Great Plains ADA Center will address documentation and broader ADA related issues for these entities.
10) We require identification for items such as alcohol and cigarettes at the check-out counter. If I provide curbside service to someone who can’t wear a face mask, can I still require identification?
Yes. These types of legal requirements still apply to people with disabilities, just like everyone else. You also have a right to set up procedures which make contact as minimal as possible. For example, you may have the person drop their Driver’s license or ID card in a box rather than hand it directly to staff.
11) My business offers eyebrow waxing and other spa services. We have a customer who says she can't wear a mask due to disability and doesn't want to use any other type of face-covering or face shield. We can't provide these services online or through delivery. Does that mean we must make an exception to our face mask policy?
The ADA requires businesses to assess what types of modifications they can provide that are reasonable. Depending upon the nature of the business, there may be no reasonable alternative method to provide goods and services to the customer. If this is the case, your business does not have to change its face mask policy provided it is based on a legitimate threat to others' health and safety.
12) Until a couple of weeks ago, our business had no face mask policy and left the choice to wear a mask up to our customers. Due to increased cases in our area, we want to begin requiring face masks in our store. A couple of our customers have told us they weren't wearing masks due to their disabilities. They believe that it is both unfair and discriminatory that they must now wear face masks to come into the store when so many other people were not required to wear masks.
This scenario is a good example of why it is highly recommended that businesses communicate their face mask policies clearly to their customers. If there is a change in policy, a written notice in the front of the business stating the new policy and when it will go into effect is good practice. This information could also be posted on the business website and social media.
Businesses should also be careful to apply their policies equally to all customers. For example, if young, healthy looking customers shop openly without a mask while, in contrast, a customer who appears to have a disability is questioned about their disability and then asked to wear a face mask--the discrimination complaint may be legitimate.
13) A young man who is deaf and read lips frequently shops at our store. Should we require our staff to wear face masks with clear plastic inserts to allow lip reading?
According to the National Association of the Deaf (NAD), face masks pose real communication challenges for deaf and hard of hearing individuals. Face masks with clear plastic shielding to make the mouth visible are one way to meet the needs of people who read lips. These masks would not have to be worn all of the time by employees, but simply be available as needed to communicate with customers who read lips. A full face shield is another option that allows more visibility of the entire face, making lip-reading easier. (Of course, sanitation protocols should be used rather than just letting different employees share the same mask or shield! ) Not everyone who is deaf or hard of hearing lip-reads. Other alternative methods of simple communication include text messaging, Skype or Face time, dry erase boards, and disposable pens and paper.
Developed by the Great Plains ADA Center. July 10, 2020