Leeper: ‘Medically exempt’ doesn’t outweigh risk
Disability advocate says ADA does not require businesses to provide full access to maskless customers
By Garrett Cabeza, Daily News staff writer, Feb 10, 2021
Some people are medically exempt from wearing a face covering, but the Americans with Disabilities Act does not require businesses to provide customers full access to their establishment if he or she poses a direct threat to the health or safety of others.
“Direct threat means 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,” according to the ADA’s Title 3, Sec.36.208.
Face coverings are intended to slow the spread of COVID-19, and Mark Leeper, executive director at Disability Action Center Northwest in Moscow, said not wearing one — whether exempt or not — is a direct threat.
“There’s been so much study and feedback that, you know, it’s likely a pretty good argument to say that it’s a direct threat,” Leeper said.
The Northwest ADA Center offers an online fact sheet that balances face requirements with the rights the ADA affords people with disabilities.
It says if a person claims they cannot wear a face covering because of a disability or medical condition, the business should offer them another way to access its goods and services while keeping employees and customers safe. These could include curbside pickup, online ordering or communicating remotely with a store employee while the employee shops on their behalf.
The Northwest ADA Center says there may be rare instances when it is not possible to accommodate an individual. It does not have to provide a requested modification if doing so would create a direct threat to employees or customers and/or a fundamental alteration to its business practices.
“Businesses have done their best in most cases to keep everyone safe, but they struggle with interpreting the ADA when dealing with people that claim exemptions,” Leeper wrote in an email to the Daily News. “They have been correctly told that they cannot make inquiries about medical conditions or disabilities, so they think they have to allow a person full access on face value. They don’t understand that the actual ADA regulation says they must reasonably modify practices, but are not required to provide full access if it presents a direct threat.”
Leeper said he feels bad for business owners and employees who deal with anti-mask customers.
“I think a lot of that potential conflict can fall by the wayside,” he said. “And we say, ‘Oh, absolutely. Here’s how we can provide service that’s still safe.’ ”
Moscow’s face mask order says face coverings must be worn in public where 6-foot social distancing cannot be maintained with nonhousehold members. The order, which took effect in early July, will last until at least June 9 unless the Moscow City Council terminates the mandate sooner based on improved COVID-19 conditions.
Garrett Cabeza can be reached at (208) 883-4631, or by email to firstname.lastname@example.org.