Updated: 7/2/2020

Introduction

The COVID-19 pandemic has 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 most likely to become seriously ill. Safety measures such as social distancing, stay at home orders, and the wearing of face masks or cloth face coverings are now part of our daily lives. For the purposes of this document, the term “face mask” will be used for both face masks and cloth face coverings.

Wearing a face mask is one important way to slow the spread of COVID-19. The Centers for Disease Control and Prevention (CDC) recommends wearing a face mask in public places like grocery stores and pharmacies, where it is hard to stay six feet apart from other people. ^[1] Several state and local governments are requiring the use of a face mask when in public spaces.

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 answers 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 state or local government agency or business require customers to wear a face mask?

On March 11, 2020, the World Health Organization (WHO) declared COVID-19 as a pandemic.^[2] The Centers for Disease Control and Prevention (CDC) notes that studies have shown that many people who do not have symptoms of COVID-19 can spread the virus to other people. Because it takes four to fourteen days for someone to show symptoms, they also may infect others without knowing it. ^[3] This means that the virus can be shared between people who are close to each other. For example, people who are speaking, coughing, or sneezing may spread the virus even if they do not have symptoms.^[4] Therefore, the CDC recommends that people over age two wear a face mask in public where it can be hard to stay six feet apart from others.^[5]

Based upon the CDC guidance, a business or government agency may require customers to wear a face mask to limit the spread of COVID-19. Guidance from the CDC is likely to change as the COVID-19 pandemic evolves. Therefore, private businesses and government agencies should follow the most current information on maintaining safety by reviewing the Centers for Disease Control and Prevention (CDC) Coronavirus (COVID-19) information.

Is there a reason a person might not be able to wear a face mask?

The 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 or cloth face covering.^[6]

Examples of a person with a disability who might not be able to wear a face mask

• Individuals with respiratory disabilities such as asthma, chronic obstructive pulmonary disease (COPD), or cystic fibrosis may not be able to wear a face mask because of difficulty in or impaired breathing. People with respiratory disabilities should consult their own medical professional for advice about using face masks. The CDC also states that anyone who has trouble breathing should not wear a face mask.^[7]
• People with post-traumatic stress disorder (PTSD), severe anxiety, or claustrophobia (an abnormal fear of being in enclosed or narrow places),^[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 individual 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 will be unable to wear a 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?

Many state and local governments have either recommended or issued executive orders requiring people to use face masks in public. 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.

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] The requirement to modify a policy, practice, or procedure does not include individuals without disabilities, as they are not protected under the 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;
• 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; or
• 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 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 a municipal 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.

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 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.

In order 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;
• 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 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 issued two settlement agreements that provide guidance on the reasonable modification decision-making process.^[23][24]

1. Choose 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]
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.
      1. In most cases, 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 without medical documentation.
   2. Request 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.

      At this time, the U.S. Department of Justice or other federal agencies with enforcement authority have not provided guidance about whether a store can or cannot ask for medical documentation about a person’s inability to wear a 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 you would have a brief interaction, such as grocery stores or pharmacies. A person with a disability typically does not carry disability documentation with them every place they visit. There are some places such as medical offices or hospitals that may need the medical documentation because a person who is not wearing a mask may infect other people who are sick.

   3. Deny the request. If a request for modification 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 and provide a copy to the person with a disability, and keep a copy on file.

Best Practice Tip

Prepare a list of possible alternatives to a face mask/cloth face covering policy that you can share with people with disabilities who request a reasonable modification to your policy. (See: Examples of reasonable modifications to a face mask policy for examples of policy modifications.)

Summary

As the COVID-19 pandemic continues, 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.

For more information about rights under the Americans with Disabilities Act (ADA) and how they apply to the coronavirus (COVID-19) pandemic, visit ADA, Disability & COVID-19 Resources (adacovid19.org). For questions and training on the ADA, contact your regional center in the ADA National Network at 1-800-949-4232 or visit adata.org. All calls are confidential. We do not give medical or legal advice. [Refer to: Disclaimer]

Endnotes

[1] Centers for Disease Control and Prevention. Recommendation Regarding the Use of Cloth Face Coverings, Especially in Areas of Significant Community-Based Transmission. (2020, April 3). Retrieved May 29, 2020, from https://www.cdc.gov/coronavirus/2019-ncov/prevent-getting-sick/cloth-face-cover.html

[2] World Health Organization. (2020, April 27). WHO Timeline – COVID-19. Retrieved June 1, 2020, from https://www.who.int/news-room/detail/27-04-2020-who-timeline—covid-19

[3] Centers for Disease Control and Prevention. (2020, May 12). Clinical Questions about COVID-19: Questions and Answers. Retrieved June 4, 2020, from https://www.cdc.gov/coronavirus/2019-ncov/hcp/faq.html#Transmission

[4] Centers for Disease Control and Prevention. (2020, April 3). Recommendation Regarding the Use of Cloth Face Coverings. Retrieved June 2, 2020, from https://www.cdc.gov/coronavirus/2019-ncov/prevent-getting-sick/cloth-face-cover.html

[5] Centers for Disease Control and Prevention. (2020, May 22). About Cloth Face Coverings. Retrieved June 2, 2020, from https://www.cdc.gov/coronavirus/2019-ncov/prevent-getting-sick/about-face-coverings.html

[6] Centers for Disease Control and Prevention. (2020, May 22). About Cloth Face Coverings. Retrieved June 2, 2020, from https://www.cdc.gov/coronavirus/2019-ncov/prevent-getting-sick/about-face-coverings.html

[7] Centers for Disease Control and Prevention. (2020, May 22). About Cloth Face Coverings. Retrieved June 2, 2020, from https://www.cdc.gov/coronavirus/2019-ncov/prevent-getting-sick/about-face-coverings.html

[8] Definition of claustrophobia. (n.d.). Retrieved May 29, 2020, from https://www.dictionary.com/browse/claustrophobia?s=t

[9] Des Roches Rosa, S. (2020, May 11). Some autistic people can’t tolerate cloth face coverings. Here’s how we’re managing with our son. The Washington Post. Retrieved from https://www.washingtonpost.com/lifestyle/2020/05/11/some-autistic-people-cant-tolerate-face-masks-heres-how-were-managing-with-our-son/

[10] ADA National Network. Health Care and the Americans with Disabilities Act. (n.d.). Retrieved May 29, 2020, from https://adata.org/factsheet/health-care-and-ada

[11] U.S. Department of Justice. Americans with Disabilities Act Title II regulations: nondiscrimination on the basis of disability in state and local government services, (2010). Washington, D.C.: Dept. of Justice. Retrieved from https://www.ada.gov/regs2010/titleII_2010/titleII_2010_regulations.htm

[12] U.S. Department of Justice. Americans with Disabilities Act Title III Regulations: nondiscrimination on the basis of disability in public accommodations and commercial facilities (2017). Retrieved from https://www.ada.gov/regs2010/titleII_2010/titleII_2010_regulations.htm

[13] U.S. Department of Justice. (2008, October 9). ADA Best Practices Tool Kit for State and Local Governments – Chapter 1 ADA Basics: Statute and Regulations. Retrieved June 3, 2020, from https://www.ada.gov/pcatoolkit/chap1toolkit.htm

[14] U.S. Department of Justice. Americans with Disabilities Act Title II regulations: nondiscrimination on the basis of disability in state and local government services, (2010). Washington, D.C.: Dept. of Justice. Retrieved from https://www.ada.gov/regs2010/titleII_2010/titleII_2010_regulations.htm

[15] U.S. Department of Justice. Americans with Disabilities Act Title III Regulations: nondiscrimination on the basis of disability in public accommodations and commercial facilities (2017). Retrieved from https://www.ada.gov/regs2010/titleIII_2010/titleIII_2010_regulations.htm

[16] U.S. Department of Justice. Americans with Disabilities Act Title II regulations: nondiscrimination on the basis of disability in state and local government services, (2010). Washington, D.C.: Dept. of Justice. Retrieved from https://www.ada.gov/regs2010/titleII_2010/titleII_2010_regulations.htm

[17] U.S. Department of Justice. Americans with Disabilities Act Title III Regulations: nondiscrimination on the basis of disability in public accommodations and commercial facilities (2017). Retrieved from https://www.ada.gov/regs2010/titleIII_2010/titleIII_2010_regulations.htm

[18] U.S. Department of Justice. (1993, November). The Americans with Disabilities Act Title II Technical Assistance Manual Covering State and Local Government Programs and Services. Retrieved June 2, 2020, from https://www.ada.gov/taman2.html

[19] U.S. Department of Justice. (1993). Americans with Disabilities Act Title III Technical Assistance Manual – Covering Public Accommodations and Commercial Facilities. Retrieved June 3, 2020, from https://www.ada.gov/taman3.html

[20] U.S. Equal Employment Opportunity Commission. (2020, March 21). Pandemic Preparedness in the Workplace and the Americans with Disabilities Act. Retrieved June 5, 2020, from https://www.eeoc.gov/laws/guidance/pandemic-preparedness-workplace-and-americans-disabilities-act

[21] U.S. Department of Justice. Americans with Disabilities Act Title II regulations: nondiscrimination on the basis of disability in state and local government services, (2010). Washington, D.C.: Dept. of Justice. Retrieved from https://www.ada.gov/regs2010/titleII_2010/titleII_2010_regulations.htm

[22] U.S. Department of Justice. Americans with Disabilities Act Title III Regulations: nondiscrimination on the basis of disability in public accommodations and commercial facilities (2017). Retrieved from https://www.ada.gov/regs2010/titleIII_2010/titleIII_2010_regulations.htm

[23] U.S. Department of Justice. (2016, July 28). Settlement Agreement Between the United States of America and YMCA of the Triangle under the Americans with Disabilities Act (DJ # 202-54-148). Retrieved June 3, 2020, from https://www.ada.gov/ymca_triangle_sa.html

[24] U.S. Department of Justice. (2010, November 22). Settlement Agreement Between the United States of America and the District of Columbia under the Americans with Disabilities Act. Retrieved June 3, 2020, from https://www.ada.gov/dc_shelter.htm

[25] U.S. Department of Justice. (n.d.). Common Questions about Title II of the Americans with Disabilities Act [Text file]. Retrieved June 3, 2020, from https://www.ada.gov/pubs/t2qa.txt