As disability advocates in Colorado are celebrating the 30th anniversary of the Americans with Disabilities Act (ADA) on July 26, they warn that the ADA should not necessarily be used as an excuse to not wear a mask.
Julie Reiskin, executive director of the Colorado Cross-Disability Coalition (CCDC), a statewide organization focusing on disability rights, counselled against invoking the ADA unless you have a legitimate disability and even then, that does not mean you can ignore rules from businesses or governments about wearing masks.
“We’ve had to get involved in this whole mask issue because people are unfortunately bringing the ADA into it inappropriately,” Reiskin said. “The problem is we feel like a lot of people who don’t have legitimate disabilities are just saying they do and using the ADA.”
The CCDC was founded 30 years ago to ensure the ADA was fairly enforced in Colorado. The ADA prohibits discrimination based on disability.
What Reiskin is referencing is the growing use of the ADA as a justification not to follow city or state-wide orders, like the one Colorado Gov. Jared Polis issued last week, mandating that individuals wear masks in indoor spaces.
Images of flyers and laminated “Face Mask Exempt” cards have been circulating social media and have been labelled fake by fact checkers. The flyers and the cards both say businesses cannot kick people out if they are not wearing a mask because of the ADA and display the seal of the U.S. Department of Justice, which regulates the ADA.
The Department of Justice has stated it hasn’t created or endorsed the postings.
In late June a viral video surfaced of a woman at a Trader Joe’s in California screaming at employees and onlookers about the store asking her to wear a mask.
“That man harassed me for not wearing a mask,” the woman yelled in the video. “I have a breathing problem. My doctor will not let me wear a mask. So, anyone harassing me to wear a mask, you guys are violating federal law.”
Despite these claims, the CCDC actively encouraged mask wearing and businesses to enforce it. Reiskin pointed out that people are either purposefully or accidentally misinterpreting the ADA.
“There are some people with legitimate disabilities who cannot wear a mask,” Reiskin said “But what people are saying is ‘I have a breathing problem so I can’t wear a mask and you can’t ask me anything about it and you have to let me in to your store’ and that’s not what the ADA says.”
While the ADA generally can force businesses to make accommodations for people with disabilities, it does not require businesses to do so when the accommodations pose a direct threat to the health and safety of others. Allowing people inside a store without wearing a mask is a direct threat to others because it increases the likelihood of spreading the novel coronavirus.
This does not mean that people who cannot or should not be wearing masks risk their own safety. It means that people whose disability inhibits them from masking up should be accommodated by businesses in a different way.
According to Reiskin, businesses should offer other solutions for individuals with these disabilities like telephone or video chat services, curbside delivery, or providing the service to a friend or family-member of the person.
“The business might still have to accommodate you,” Reiskin said. “Like if you are not allowed in a store, the store might still have to accommodate you by making you wait outside and carrying your groceries out to your car. But the store doesn’t have to let you in and get close to their employees or other customers.”
An example of how this type of accommodation should have been made happened earlier this month when Air Force veteran Israel del Toro was refused entry to a commissary in Peterson Air Force Base in Colorado Springs because he was not wearing a mask. Following an IED explosion in 2005 del Toro suffered severe burns and lost both his ears and the use of his fingers.
The base should have included curbside pickup or a similar alternative as an option for people like del Toro with legitimate disabilities that prevent them from wearing masks, Reiskin indicated.
El Paso, Elbert, and Washington Counties have all pledged to not enforce the mask mandate authorized by Polis. Douglas County opted out of the Tri-County Health District in early July and the Colorado Times Recorder reported on a sheriff in Weld County who refused to enforce the order.
El Paso County Public Health Spokesperson Michelle Hewitt told the Colorado Springs Independent that while there may be individuals who cannot wear masks because of their disability that is all the more reason for people without disabilities to wear one.
“[T]hey would be included in the vulnerable population,” Hewitt said in the interview. “Which is why it’s so critical that others around these vulnerable individuals wear masks.”
After Polis announced the mask mandate, Republican State House Leader Patrick Neville took to Twitter to announce his intent to file a lawsuit against the governor. Neville did not expand on what exactly the lawsuit would entail.
A report by Farleigh Dickinson University titled “Americans favor broad covid-19 restrictions despite infringements on personal freedoms and privacy” included polling that showed 79 percent of adults support mandatory masks in enclosed spaces.
A range of research on face coverings has shown that wearing one decreases risk to the wearer, but is even more effective in decreasing the wearer’s contagiousness, thereby protecting others around them.
“What the science tells us is that masks, social distancing, and hand washing are what’s needed to prevent this from getting any worse and to get this under control,” Reiskin said.
July 26 is the 30th anniversary of the Americans with Disabilities Act. The CCDC is hosting a virtual event showcasing the positive impact the ADA has had on Coloradan’s lives on Sunday at 11 a.m.
