Yes, your business can make all customers wear face coverings. Even folks that claim that they can’t.

A few months ago, I blogged here about a lawsuit filed in a Pennsylvania federal court in which a plaintiff alleged that a grocery store’s inflexible policy of requiring all customers to face coverings — even the ones with documented medical issues — violated the Americans with Disabilities Act.

Late last week, the judge effectively stuck a pin in the plaintiff’s balloon by denying a request for an injunction. So, I want to tell you a little about this case. Stick around to read the plaintiff’s social media posts. It’ll be worth your while.

Title III

Title III of the ADA prohibits disability discrimination based in 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).

Like in the traditional workplace ADA claims with which you are probably much more familiar, a plaintiff alleging a violation of Title III can claim that the defendant failed to accommodate her/his disability. A plaintiff asserting this claim must show that the desired accommodation is reasonable and necessary.

Unreasonable and unnecessary

Based on the foregoing standard, the court concluded that the plaintiff was unlikely to succeed on the merits. For example, the plaintiff could not show why his disability preventing him from wearing something other than a mask, like a full face shield. The grocery store permitted full-face shields, and so does the PA Department of Health.

No medical evidence either

Additionally, the Court concluded that the plaintiff had not presented any medical evidence that he could not wear a mask. While I hesitate to call myself an ADA expert because I think the rules of professional ethics preclude me from doing so, I don’t have to stay at a Holiday Inn Express to know that failure to accommodate claims generally involve some evidence of a disability.

And then there was the plaintiff’s social media.

Yeah, about that.

The Court received evidence of “the numerous inconsistent statements he made in social media posts and on … video” For example:

  • “I don’t mind wearing a mask, if someone tells me polite (sic).”
  • “I’m in excellent health with the exception of a herniated disk in my neck.”
  • “I have a right to refuse wearing a mask. No one can legally make me ‘Buy’ masks.”
  • “There are no laws stating I must wear a mask so, (sic) it can rest entirely on my Constitutional right to refuse.”
  • “I’m an adult. I know how to wash my hands and not breath (sic) in peoples (sic) faces.”

Shall I continue? Oh, WTH not?

  • “I do what the hell I want. I go outside when I want.”
  • “If stores won’t welcome (sic) in they lose my business. I’m not wearing a mask and I’m not social distancing.”
  • “This is my country and I’m a free man. Anyone that tries to take that for (sic) me is a tyrant.”

Most of these posts preceded the plaintiff’s visit to the grocery store.

All told, the plaintiff did not present sufficient evidence to support a discrimination claim.

Legitimate safety requirement and a ‘direct threat’

Notwithstanding, a defendant can still prevail if it can establish a legitimate safety requirement and a ‘direct threat.’ Given the plaintiff’s weak affirmative claim, the court did not have to delve too far into the grocery store’s defenses. Basically, it concluded that a face-covering requirement is reasonable during COVID-19 to protect the health and safety of others.

Because no sh*t it is.

(Feel free to quote me on that should you find yourself defending a similar claim. Or maybe zhuzh it up a bit first. Up to you).


“Doing What’s Right – Not Just What’s Legal”
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