During the pandemic, there is no blanket exemption for people who, due to a medical condition, want to refrain from wearing a mask in a hotel. (Courtesy photo)

Medical disability rights in the era of COVID-19

Those who cannot wear masks may register concerns with government agencies

By Christopher Dolan and Dianna Albini

Domenic A. in Oakland writes, “I have a medical respiratory condition that makes breathing difficult when wearing personal protective equipment. I was out of town on business staying at a well-known hotel chain. The hotel requires all guests to wear personal protective equipment at all times, unless actively eating or drinking and enforces social distancing requirements. I informed the hotel manager of my medical condition that made wearing personal protective equipment harmful to my health and asked for an accommodation for my medical condition. The manager of the hotel chain refused to accommodate my medical condition and required me to wear my personal protective equipment. Do I have any legal recourse based on the hotel manager’s failure to accommodate my medical disability and requiring me to wear a face covering?”

Domenic, thank you for asking a great question.

The Americans with Disabilities Act, Disability by Public Accommodations and in Commercial Facilities Title III Regulations – 61. 28 CFR Part 36, protects individuals who are targets of discrimination including but not limited to mental and medical disabilities. Determining the existence of discrimination is complicated as we are currently navigating unprecedented waters due to the COVID-19 pandemic.

On June 30, 2020, U.S. Department of Justice Assistant Attorney General for the Civil Rights Division Eric Dreiband issued press release 20-603 warning the public that placards, signs, social media posts and other documents bearing the Department of Justice seal claiming that the Americans with Disabilities Act exempts individuals from face mask requirements are fraudulent. There is no blanket exemption.

On June 18, 2020, Gov. Gavin Newsom ordered all Californians to wear face coverings. As updated on June 29 on the California Department of Public Health website, https://www.cdph.ca.gov/ the following individuals are exempt from wearing a face covering:

• Persons younger than 2 years old. These very young children must not wear a face covering because of the risk of suffocation.

• Persons with a medical condition, mental health condition or disability that prevents wearing a face covering. This includes persons with a medical condition whose wearing a face covering could obstruct breathing; or who are unconscious, incapacitated or otherwise unable to remove a face covering without assistance.

Note: Persons exempted from wearing a face covering due to a medical condition who are employed in a job involving regular contact with others should wear a non-restrictive alternative, such as a face shield with a drape on the bottom edge, as long as their condition permits it.

While there are exemptions to the governor’s mandatory face covering order for those with medical disabilities, in light of the COVID-19 pandemic, if the hotel manager is unable to accommodate any documented medical condition related to personal protective equipment, there is no basis for legal action under these circumstances.

If you feel your rights have been violated, you may file a federal, state and local complaint form with the appropriate governmental entity listed below.

Jordan V. asks, “My medical condition falls within a class of persons at greater risk for contracting COVID-19 and I have a doctor’s letter documenting this risk. I went to a nationwide grocery store chain during hours designed for high risk shoppers. The store manager refused to give me access, despite my showing the manager the letter my doctor provided. Were my rights violated?

Jordan, thank you for asking an important question.

The Americans with Disabilities Act became law in 1990. The ADA is a civil rights law that prohibits discrimination against individuals with disabilities in all areas of public life, including jobs, schools, transportation, and all public and private places that are open to the general public. The purpose of the law is to make sure that people with disabilities have the same rights and opportunities as everyone else. The ADA gives civil rights protections to individuals with disabilities similar to those provided to individuals on the basis of race, color, sex, national origin, age and religion. It guarantees equal opportunity for individuals with disabilities in public accommodations, employment, transportation, state and local government services and telecommunications.

The specific facts you have described — that despite showing the store manager your medical documentation, you were arbitrarily refused entrance during special hours set aside to shop for a limited number of individuals at high risk for contracting COVID-19 — would be a violation of your rights pursuant to the ADA.

If you feel you experienced discrimination based on a medical condition in violation of Title III, Disability by Public Accommodations and in Commercial Facilities you should contact an attorney experienced in disability rights to explore your rights and discrimination with the following federal, state and local agencies:

U.S. Department of Justice: https://www.ada.gov/t2cmpfrm.htm

State of California, Department of General Services: https://www.documents.dgs.ca.gov/dgs/ADA-form.pdf

City and County of San Francisco: https: //sfgov.org/mod/ada-complaint-request-assistance

Christopher B. Dolan is owner of the Dolan Law Firm. Dianna Albini is a senior trial attorney in our San Francisco office. Email questions and topic suggestions to: help@dolanlawfirm.com.

We serve clients across the San Francisco Bay Area and California from our offices in San Francisco, Oakland, and Los Angeles. Our work is no recovery, no free or also referred to as contingency-based. That means we collect no fee unless we obtain money for your damages and injuries.

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