Demand face masks? Get sued. Lax requirements? Also get sued.

By Daniel Fisher

Stores, restaurants and other businesses that serve the public are caught in a bind over rules requiring customers to wear masks as protection against COVID-19.

They must enforce the rules to prevent employees and customers from getting sick, but the Americans with Disabilities Act and state equivalents could expose them to litigation by people who say they have health conditions that prevent them from wearing masks.

Throw frayed nerves, belligerent customers and staffers with little training on how to deescalate confrontations and it is a recipe for lawsuits regardless of what businesses decide to do. Attorney Peter Petesch with Littler Mendelson said he and his colleagues are already dealing with threats including demand letters from lawyers who claim mask rules violate the ADA. Class actions are already here.

“We’re starting to see it,” Petesch said. “You’re going to get a cadre of attorneys whipping up claims like this and eventually we will see an argument on the need to balance the safety of others against the rights of individuals under the ADA.”

There is no constitutional right to shop without a mask, Petesch said. Places of public accommodation must comply with antidiscrimination statutes but rights like the freedom of speech could apply against the government and state actors.

“It’s just like going into a restaurant and getting on a megaphone and making a speech,” Petesch said. “It’s the same principle.”

Even the ADA theoretically leaves businesses leeway to require masks. The law requires stores and restaurants to make certain accommodations to people with disabilities, such as wheelchair ramps and special parking spaces. But a store owner could argue that even if a customer claims a disability prevents him from wearing a mask, that customer could still buy groceries by ordering them online and picking them up outside.

The customer could also wear a COVID-compliant face shield that doesn’t restrict breathing.

Theory and reality collide when it comes to ADA litigation, however. Because federal law provides for the payment of legal fees and some state laws, like California’s, allow plaintiffs to recover damages, disability litigation is highly profitable and increasing every year. Some lawyers make millions of dollars using serial plaintiffs to sue businesses over everything from incorrect counter heights to websites that aren’t accessible to the blind. Millions more are made over the threat of litigation contained in “demand letters” in which lawyers make it clear they will drop an intended suit in exchange for fees.

Employers have a clear duty to engage in a multi-step process of determining whether and how to accommodate a worker’s inability or unwillingness to wear a mask. Under Title I of the ADA, businesses must determine whether the worker has a disability that prevents the use of a mask, and whether it is an “essential function” of the job to wear one. Even if state or local regulations allow exceptions to the mask rule, employers can still comply with ADA and require a mask if the safety of coworkers or customers demands it.

Employers can also require medical documentation of the disability. But stores can’t stop customers to question them about their condition or request medical documentation. That leaves them “between a rock and a hard place,” Petesch said, because they have no way of determining whether a customer is telling the truth when they say they can’t wear a mask or show a card printed off the internet purporting to give them the freedom to go mask-less. (The Justice Department recently warned against flyers and web posts claiming the ADA provides an exemption from mask rules.)

“Every business confronted with this is going to have to make a choice,” said Petesch. “But there is a danger to making exceptions to a face covering rule. By making exceptions, you will start seeing the exception start to swallow the rule.”

Ultimately, he said, the question “is going to be tested in the courts.”