Public Health Madison & Dane County issued a mask order, effective July 13, 2020. Mandatory mask policies interact with the Americans with Disabilities Act in two major ways: as employer and employee, and as business owner and customer. Below you will find answers addressing both relationships.
If an employee refuses to wear a mask because they have a medical condition, mental health condition, or disability, are we allowed to ask for documentation from a medical provider?
Yes, although there is an exemption for people with disabilities in the Public Health Madison & Dane County (PHMDC) Order, this does not change the need for documentation in the accommodations process. The intent of the Order is to ensure that customers and coworkers are not exposed to COVID-19, and if an employee is unable to wear a mask, steps still need to be taken to ensure public safety. These steps include an examination of other potential accommodations, such as telework, reassignment, or ability to utilize leave provisions as directed by FMLA and the CARES Act. Employment is the only category in which you may ask for documentation of a disability before providing an accommodation.
If an employee refuses to cooperate, are we required to accept that or are we within our rights to send them home without pay?
Adherence to mandatory mask policies are a condition of employment because they are required under the PHMDC Order, and the nature of the interactive process is not changed by this. If an employee refuses to cooperate, even after an employer has begun conversations about accommodations, they have violated a condition of employment and can be subject to discipline in accordance with company policy. If the violation results in termination or other disciplinary actions, any subsequent requests for accommodations based on a disability should be handled outside of the disciplinary process. Accommodations cannot be retroactively applied.
The PHMDC Order encourages individuals to presume that someone NOT wearing a face covering is doing so for a legitimate reason, like for medical conditions, mental health conditions, or disabilities. How should businesses enforce the Order with customers?
Identifying if an individual is not wearing a mask for legitimate reasons should be handled much in the same way as identifying the need for a service animal. Under service animal laws, business owners and employees may conduct what is known as limited inquiry. This allows them to ask if a service animal is needed because of a disability, and what work the animal performs. Similarly, business owners should feel comfortable asking if someone is not wearing a mask due to disability, medical, or mental health condition. If the response is no, then they do not meet the qualifications for an exemption. If the response is yes then business owners and employees can move on to discussions of alternate methods of accessing goods and services. This can include employees retrieving goods, home delivery, curbside pickup etc.
The Order has an exception to the mask requirement when needed to communicate “with an individual who is deaf or hard of hearing and not wearing a face covering is essential to the communication.” In these instances, efforts should be made to attempt communication through writing or other forms of communication, as well as to remain physically distant during communications.
Can anyone claim they have a condition listed under the exemption or is a diagnosis required?
There is no need for diagnosis, and further inquiry into the nature of a disability would be a violation of the ADA. Anyone can claim a qualifying condition, but this does not mean you must allow them access. If goods or services can be provided through an alternate method you may provide that alternative.
Is a business supposed to refuse service to someone who refuses to wear a mask?
This is determined by the type of business and the goods or services offered. The ultimate goal is to serve the public.
- If an individual does not meet the qualifications for an exemption you may refuse them service.
- Services can be delivered in an alternate manner, you may refuse them service if they refuse those methods.
- If an individual meets one of the qualifications for an exemption and goods and services cannot be delivered in an alternate manner, you should grant them access as long as they adhere to the other guidelines within the order.
Scenario: A customer comes in without mask and states they have a medical condition that prevents them from wearing a mask. If alternative services are offered are declined what is the expectation of the business?
Once the alternatives services are offered, the business owner has done its part under the ADA to provide an accommodation. If the customer declines the offered accommodations, the business owner is at liberty to decline them entry if they so choose.
For businesses that can’t offer accommodations to individuals that meet an exemption for wearing a face covering, (eg: gyms), is and an individual prohibited from entering the business?
An individual would not be prohibited from entering, but would have to abide by other provisions of the Order, such as physical distancing and ensuring cleanliness of equipment.