Can your business require a customer to wear a mask? What if she has trouble breathing?

Good questions? And, not coincidentally, the subject of a lawsuit just filed in a Pennsylvania federal court.

The plaintiff, who claims to have respiratory issues, alleges that a supermarket in Pennsylvania refused to let her enter the store without a mask, even though she told an employee that she had “a medical condition that prevents her from wearing a mask.” Supposedly, the employee said to her, “The law is you must wear a mask.” Consequently, the plaintiff left the premises without making a purchase because she could not comply with the store’s demand.

And then she sued for violations of Title III of the ADA.

Title what now?

Title III prohibits discrimination based on a disability in the activities of places of public accommodations (businesses that are generally open to the public and that fall into one of 12 categories listed in the ADA, such as restaurants, movie theaters, schools, daycare facilities, recreation facilities, and doctors’ offices).

Supermarkets too.

You’re probably a lot more familiar with Title I of the ADA, which isn’t that much different than Title III. But you don’t know it as Title I. Title I of the ADA prohibits employers from discriminating against applicants and employees based on a disability.

Whether its Title I or Title III, the definitions of disability are the same, and both carry a duty to accommodate where it’s reasonable to do so.

So, rather than analyze whether the plaintiff can prevail in her lawsuit — you can read more about that in my friend Bill Goren’s excellent blog post — let’s pivot and talk about how this might play out in the workplace.

Masks and the workplace.

According to recent EEOC guidance, an employer can require employees to wear masks (and other PPE) and observe infection control practices (for example, regular hand washing and social distancing protocols) to prevent the spread of COVID-19.

But, don’t forget about that duty to accommodate.

So, let’s assume that you have an employee who says that, due to her disability, she can’t wear a mask at work. What do you do?

The employer should discuss the request and provide the modification or an alternative if feasible and not an undue hardship on the operation of the employer’s business under the ADA. Or Title VII, for that matter, if the employee has a religious objection to wearing a mask.

For disability accommodation, employers may ask questions or seek medical documentation to help decide if the individual has a disability, and if there is a reasonable accommodation.

So, what are some possible accommodations? Well, telecommuting is one. Maybe, an unpaid leave of absence. How about a face-shield or different type of mask that doesn’t affect the person’s breathing? Now, we’re talking. How about creating a quarantined space at work for the impacted employee? That’s tougher.

Ultimately, an employer does not have to provide a particular reasonable accommodation if it poses an “undue hardship,” which means “significant difficulty or expense.” Indeed, in some instances, an accommodation that would not have posed an undue hardship before the pandemic may pose one now.

Hey, these COVID-19 accommodation issues can get tricky and you’re not going to find all the answers in a blog post. If you have questions, consult an employment lawyer.

Don’t forget tomorrow’s Zoom chat!

However, if you have questions about what COVID-19 life in the trenches has been like over these past few months for one of my favorite HR people in the universe, then join me and my friend, Steve Browne, tomorrow at Noon EDT on Zoom. Steve is an accomplished HR professional, author, and a member of the SHRM Board of Directors.

We’re also going to explore how the HR community has come together to persevere during this pandemic, and how we can really put the “human” into human resources as businesses reopen. And since they didn’t teach us compassion in law school, I’ll defer to Steve. Plus, we’ll do some Q&A.

If you haven’t registered yet, then WTH are you waiting for? Register here.

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