If we want to reopen schools, we must change the trends now

With schools from elementary to universities trying to find a way to open their doors in six to eight weeks, America has to find a way to reverse the coronavirus trend that just grew worse in almost half the country.

This weekend, the COVID-19 pandemic spread at or near record levels in 22 states. In some states, the new cases set records. In others, the new cases were the highest measured since the first of May.

Can the government legally force you to wear a mask?

The answer is “yes.” In a pandemic, governments have the authority to do a lot of things that would otherwise be questionable.

Think of it like this: The government has the right to ban smoking in public places because your smoking can affect my health. And some places have signs that say, “No shirt, no shoes, no service.” Just add “no mask” to the sign.

However, there are exceptions. If you cannot wear a mask for health reasons or if you are in a “protected class,” then you might get a mask pass. Syracuse.com turned to a prosecutor for advice:

“All businesses have the right to refuse service so long as it is not violating one of those protected classes,” said Robert Mascari, chief assistant district attorney in Madison County. “You can’t refuse to serve me because I’m half Italian and half Irish. You can refuse to serve me if I’m being an idiot.”

Anti-maskers (I just made up that word) have claimed a “disability” to avoid wearing face masks.

Doron Dorfmann, a Syracuse University law professor who specializes in disability law, told Syracuse.com:

There may be legitimate disabilities that would prevent someone from wearing a mask: someone with autism who has sensory issues, for example, or someone with a respiratory problem for which a mask would make breathing difficult.

Under the (federal Americans with Disabilities Act), he said, store managers must be cautious in questioning anyone who says they have a disability. The manager, for example, can’t ask what the disability is.

Shop keepers can ask two questions of that person, Dorfman said: “Is (not wearing a mask) an accommodation? What kind of benefit do you get from not wearing a mask?”

What disabilities must you prove to avoid having to wear a mask?

When a local or state government issues a “must wear” order, it gives individual businesses a lot of legal cover to enforce mask requirements. Without the government’s order, an individual business might run into some trouble denying customers who claim to have disabilities that prevent them from wearing masks.

Face masks create a real problem for individuals who rely on lip reading to communicate. Retailers might try to provide sanitized dry erase boards or turn to text messaging with customers to show they want to accommodate everyone.

The National Law Review warned that businesses that exclude non-face-mask-wearing customers who claim a disability have to reach a pretty high legal bar:

The ADA permits a retailer to deny goods or services to an individual with a disability if their presence would result in a “direct threat” to the health and safety of others, but only when this threat cannot be eliminated by modifying existing policies, practices or procedures or permitting another type of accommodation. Whether a customer poses direct threat is an individualized, fact-sensitive inquiry. If a business does not have a clear policy of turning away customers who refuse to wear face masks, and turns away an individual for that reason, the business must be prepared to identify how/why that individual’s specific, observable, condition/behaviors made them a “direct threat”.

So, what would that “direct threat” look like? The ADA says that a direct threat is “a significant risk to the health or safety of others that cannot be eliminated by a modification of policies.”

It might be difficult to deny service to a person who does not have COVID-19 symptoms. The Law Review said:

For example, if the person exhibited generally recognized symptoms of COVID-19 (such as aggressive coughing compounded with profuse sweating or visible difficulty breathing), refusal of service without a mask on an individualized basis may be justifiable. Conversely, a business could be hard-pressed to successfully argue that a customer without a face mask posed a “direct threat” if he or she was asymptomatic or if there was some form of accommodation that would have allowed the person to be served (e.g., allowing someone to wear a scarf instead of a mask). Upon refusing service on “direct threat” grounds, the store should contemporaneously document its actions and justifications in the event their decision is later challenged.

Can an employer force you to wear a face mask?

The answer again is “yes,” under Occupational Safety and Health Administration statutes that say:

“Employers may choose to ensure that cloth face coverings are worn as a feasible means of abatement in a control plan designed to address hazards from SARS-CoV-2, the virus that causes COVID-19. Employers may choose to use cloth face coverings as a means of source control, such as because of transmission risk that cannot be controlled through engineering or administrative controls, including social distancing.”

If the requirement is for you to wear personal protective equipment, a higher level of protection, then the employer must furnish it (see OSHA’s PPE standard 29 CFR 1910.132). But the employer is not required to give you a cloth face mask. PPE’s generally must meet standards set by the American National Standards Institute or, in some cases, the Food and Drug Administration.

Do you have a constitutional right not to wear a mask?

The answer is “no.”

Governments have the power to regulate in the name of safety. In a pandemic, state governments really are the key players.

The American Bar Association explained:

Under the U.S. Constitution’s 10th Amendment and U.S. Supreme Court decisions over nearly 200 years, state governments have the primary authority to control the spread of dangerous diseases within their jurisdictions. The 10th Amendment, which gives states all powers not specifically given to the federal government, allows them the authority to take public health emergency actions, such as setting quarantines and business restrictions.

As a reminder, the 10th Amendment says, “Powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.”

States also retain significant emergency powers to regulate public safety and health through their own state constitutions and legal precedent dating back to the early 1800s.

The federal government’s quarantine powers are limited to those things the feds control, like ports of entry, airspace and such. States each have specific laws that set out who has what authority. Here is a list of each state’s rules.

But there is a legal argument around something called “the Preemption Doctrine” (if you really care, see the Supremacy Clause of the Constitution. U.S. Const. art. VI., § 2). The preemption doctrine refers to the idea that a higher authority of law will displace the law of a lower authority when the two authorities come into conflict. Let’s say a state says, “We are in an emergency and you have to wear a mask” (as California did). A local government can’t come along and say, “Forget what the state said.” Generally, then, an act of Congress preempts state constitutions and an FDA ruling preempts state court rulings and so on.

If you want to know the specific laws affecting government quarantine powers, go here.

Masks, minorities and men

CNN explored the issue of whether racial and ethnic minorities are reluctant to wear masks because they are concerned they will be targeted or profiled as being suspicious. About a month ago, an Ohio health official had to apologize for guidelines he issued titled “COVID-19 General Guidance on Wearing Face Mask for African Americans and Communities of Color” in which he suggested avoiding certain mask colors and designs that might have “gang symbolism.”

It is a really interesting question to ask public officials how they would respond to concerns from people who fear being targeted by police if they wear masks given that, just a few months ago, it was illegal to wear a mask in public.

One study found that men are more reluctant than women to wear masks because men consider masks to be “uncool.” Voice of America reported:

The study, conducted by researchers Valerio Capraro from Middlesex University London and Hélène Barcelo from the Mathematical Sciences Research Institute in Berkeley, California, found that American men were more likely to leave the house without a mask, saying wearing one is a sign of “weakness” and “not cool.”

Another survey by the Gallup/Knight Foundation, conducted from April 14 to 20, found that 38% of men never wore a face mask or cloth face covering outside their homes.

But why “force” people to wear masks?

If reasoning alone was enough to convince people to care for themselves and others, then the experts could post the evidence that masks reduce the transmission of the virus and that would be enough. But researchon seat belt use and childhood vaccinations, for example, shows that when governments make safety mandatory, people pay more attention. And when governments widen the list of exemptions, people take advantage of those exemptions.