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August 6, 2021

Bans on COVID-19 Mask Requirements vs Disability Accommodations: A New Conundrum

Author Affiliations
  • 1Departments of History and Medicine, University of Rochester, Rochester, New York
  • 2College of Law, Syracuse University, Syracuse, New York
JAMA Health Forum. 2021;2(8):e211912. doi:10.1001/jamahealthforum.2021.1912

As states lift mask mandates and align their public health guidelines with the newest Centers for Disease Control and Prevention (CDC) recommendations, a number of states have opted to implement outright bans on any attempts to require masking. While these bans run counter to the current CDC recommendations to continue masking at schools and during travel, these laws tap into deep-seated political beliefs about government mandates, a contested issue throughout the COVID-19 pandemic. Iowa Governor Kim Reynolds signed a law banning schools from implementing mask mandates1; Texas Governor Greg Abbott issued an executive order prohibiting state governmental agencies from implementing mask requirements2; and the Utah legislature passed a bill prohibiting mask requirements in schools, colleges, and universities.3

These bans create a new conundrum for individuals who are immunocompromised. While they are encouraged to get vaccinated against the SARS-CoV-2 virus with 1 of the 3 available vaccines in the US, the vaccines have been less effective in individuals with different categories of immunosuppression.4,5 While most of the studies have examined immune response and not clinical efficacy, these 2 outcomes are likely associated. Accordingly, immunocompromised adults may be less fully protected from this virus. Although these individuals may not have required any specific prepandemic disability accommodations, they may now find themselves inadequately protected in their workplace where mask requirements are legally banned and there are no vaccine requirements.

Teachers and university educators have expressed their concerns in social media and in print, noting the lack of specific official guidance from the CDC, which has primarily highlighted the role of individual responsibility. The CDC Director Rochelle Walensky stated clearly that people should “take their health into their own hands” and that they are “protected if vaccinated.”6

This individualized approach fails to account for the interconnectedness of individuals during the pandemic, thereby perpetuating ableist views of individual health. In fact, the CDC only advises immunocompromised individuals to discuss the need for a mask or other personal protective measures with a health care professional after vaccination. In Iowa, faculty members have noted on social media that professors are not allowed to require masking (or ascertain vaccine status) in their own offices when conducting office hours with students. This policy is in stark contrast to the CDC Director’s assertion that our health is solely in our hands.6

Antimasking ordinances create a specific challenge for immunocompromised individuals. These individuals are best protected by avoiding exposures to the SARS-CoV-2 virus. Yet, if state and local governments or employers do not require vaccinations or vaccine status disclosure and they ban mask requirements, immunocompromised individuals are placed at risk—even if they are vaccinated. In fact, current estimates show that among unvaccinated individuals, the rate of SARS-CoV-2 spread is similar to its rate of spread among the general population at the peak of the pandemic.

Early in the pandemic, we argued that few conditions merit a mask exemption as a disability accommodation.7 Here, we argue the opposite. Requiring a full return to in-person work for all individuals, while banning mask requirements, is discriminatory against individuals with certain disabilities. Accordingly, allowing mask requirements is an important form of disability accommodation.

One of the main rationales for the Americans with Disabilities Act (ADA)8 was integrating people with disabilities into the labor market. To achieve this goal, the ADA includes an accommodations mandate in Title I, which covers employment discrimination. The accommodation mandate is somewhat unique in US law as it imposes an active duty on employers to provide reasonable accommodations with the goal of removing barriers to allow for equal opportunities for and participation by disabled people. The accommodation mandate is broad and includes the possibility of “appropriate adjustment or modifications of…policies.”8 Failing to provide reasonable accommodations for a known disability constitutes discrimination.8 To determine if an accommodation is in fact reasonable and thus required under the ADA, a qualified disabled employee would need to show that the accommodation is reasonable on its face, meaning it is feasible for the employer to implement. If the employee has done so and the employer is unable or unwilling to provide this accommodation, then the employer would need to demonstrate that providing the accommodation poses undue hardship in the particular circumstances.9 To determine an undue hardship, the ADA considers the nature and cost of the accommodation, the employer’s financial resources, and the nature of the operation that the employer runs.8

Under current epidemiological conditions, allowing immunocompromised individuals to require masking of unvaccinated individuals in their presence is a reasonable accommodation. The barrier to be removed is the potential transmission of the SARS-CoV-2 virus by an unvaccinated individual that would place the disabled employee at risk and would deny them participation in the workplace. The accommodation would require others around the disabled employee to wear masks during meetings or classes. The disabled employee could show that this type of modification to the policy is reasonable on its face because in the past year, masks were required in all enclosed worksites and, in fact, are still required in numerous settings, such as health care facilities.

The employer could not argue that such a mask wearing requirement would pose an undue hardship because there is little or no financial cost involved. Almost all individuals already own masks and disposable masks are inexpensive and readily available, so this accommodation does not fundamentally alter the employer’s operation. A qualified disabled employee could also file a disability discrimination claim against the state in federal court to enforce a mask-wearing accommodation. The state cannot avoid liability by claiming qualified immunity, because as the Supreme Court famously stated, “Title I of the ADA still prescribes standards applicable to the States. Those standards can be enforced…by private individuals in actions for injunctive relief.”10

In this context, public health interests and the ADA’s goal of equality of opportunity and full participation for people with disabilities converge. For immunocompromised individuals, self-masking may be inadequately protective and requiring masking of unvaccinated individuals in their presence is warranted. In states or organizations that implement outright bans on masking requirements, disability accommodations are necessary to protect immunocompromised individuals.

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Article Information

Published: August 6, 2021. doi:10.1001/jamahealthforum.2021.1912

Open Access: This is an open access article distributed under the terms of the CC-BY License. © 2021 Raz M et al. JAMA Health Forum.

Corresponding Author: Mical Raz, MD, PHD, Departments of History and Medicine, 457 Rush Rhees Library, University of Rochester, Rochester, NY 14627 (micalraz@rochester.edu).

Conflict of Interest Disclosures: None reported.

References
1.
Iowa Legislature. HF 847. May 20, 2021. Accessed July 7, 2021. https://www.legis.iowa.gov/perma/052020216985
3.
Utah State Legislature. HB 1007. May 28, 2021. Accessed July 7, 2021. https://le.utah.gov/~2021S1/bills/static/HB1007.html
4.
Grupper  A, Rabinowich  L, Schwartz  D,  et al.  Reduced humoral response to mRNA SARS-CoV-2 BNT162b2 vaccine in kidney transplant recipients without prior exposure to the virus.   Am J Transplant. 2021;10.1111/ajt.16615. doi:10.1111/ajt.16615PubMedGoogle Scholar
5.
Rabinowich  L, Grupper  A, Baruch  R,  et al.  Low immunogenicity to SARS-CoV-2 vaccination among liver transplant recipients.   J Hepatol. 2021;S0168-8278(21)00255-5. doi:10.1016/j.jhep.2021.04.020PubMedGoogle Scholar
6.
Duster  C, Thomas  N. CDC chief on wearing masks: unvaccinated people need to be honest with themselves. May 16, 2021. Accessed July 7, 2021. https://www.cnn.com/2021/05/16/politics/rochelle-walensky-unvaccinated-masks-cnntv/index.html
7.
Dorfman  D, Raz  M.  Mask exemptions during the COVID-19 pandemic—a new frontier for clinicians.   JAMA Health Forum. 2020;1(7):e200810. doi:10.1001/jamahealthforum.2020.0810 Google Scholar
8.
Americans with Disabilities Act, 42 USC §2111(9), §2111(10)(B), and §12112(b)(5). Accessed July 6, 2021. https://www.ada.gov/pubs/adastatute08.htm
9.
US Airways Inc v Barnett, 535 US 391 (2002). Accessed July 6, 2021. https://supreme.justia.com/cases/federal/us/535/391/
10.
Board of Trustees of University of Alabama v Garrett, 531 US 356 (2001). Accessed July 6, 2021. https://supreme.justia.com/cases/federal/us/531/356/
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