Letter to ICAN and Bigtree Re Mask Requirements

Re: Laws Regarding Face Masks and Medical Exemptions to Same
Dear Mr. Bigtree,

You requested we review certain information regarding medical exemptions to wearing a
face mask. As detailed below, businesses are legally required to accept a medical exemption to any requirement to wear a mask and are prohibited from requesting or requiring information or support for the medical exemption. Businesses that fail to abide by these requirements may be violating applicable federal and state laws, including those detailed below.

A. Business Required to Accept Medical Exemption to Mask Requirement

According to the Centers for Disease Control and Prevention (“CDC”), “masks should NOT be worn by … anyone who has trouble breathing.”1 Most states with mask requirements have a similar medical exemption with regard to wearing a face mask. For example:

• New York’s mask mandate provides that his mask requirement only applies to those
that are “able to medically tolerate a face-covering.”2

• California’s mask mandate states: “The following individuals are exempt from
wearing a face covering: Persons with a medical condition, mental health
condition, or disability that prevents wearing a face covering. This includes
persons with a medical condition for whom wearing a face covering could obstruct
breathing or who are unconscious, incapacitated, or otherwise unable to remove a
face covering without assistance…”3

1 https://www.cdc.gov/coronavirus/2019-ncov/prevent-getting-sick/cloth-face-cover-guidance.html.
2 https://www.governor.ny.gov/news/no-20217-continuing-temporary-suspension-and-modification-laws-relating-disaster-emergency.
3 https://www.cdph.ca.gov/Programs/CID/DCDC/CDPH%20Document%20Library/COVID-19/Guidance-for-Face-Coverings_06-18-2020.pdf.

• Texas’s mask mandate exempts “Any person with a medical condition or disability
that prevents wearing a face covering.”4

• New Jersey’s mask mandate exempts required face coverings “where doing so
would inhibit that individual’s health.”5

• Michigan’s face covering requirements do not apply to those who “Cannot
medically tolerate a face covering.”6

B. Business Prohibited from Requesting or Requiring Support for Medical
Exemptions

Businesses and institutions are also generally legally prohibited from requesting or requiring
medical or other documentation from an individual related to their medical exemption to wearing a mask. “Generally, guidance from the U.S. Department of Justice has not allowed asking for documentation for accommodations at businesses where interactions are brief, such as grocery stores or pharmacies.”7 Many states have even incorporated the prohibition on requesting support for a medical exemption to a mask mandate into their mask requirement:

• In New York, “…essential business operators and enforcement authorities are
prohibited from requesting or requiring medical or other documentation from an
individual who declines to wear a face covering due to a medical or other health
condition that prevents such usage.”8 New York also provides that “[e]mployers
are prohibited from requesting or requiring medical or other documentation from an
employee who declines to wear a face covering due to a medical or other health
condition that prevents such usage.”9

• In New Jersey, the mask order states: “Where an individual declines to wear a face
covering on store premises due to a medical condition that inhibits such usage,
neither the essential retail business nor its staff shall require the individual to
produce medical documentation verifying the stated condition.”10

• In Texas, the official guidance for its mask requirement states: “businesses may ask
customers whether the reason the customer is not able to comply with a mask policy
is because of a disability. However, they caution businesses ‘not to ask questions
about the nature or severity of the disability.’”11

• In Michigan, “A person responsible for a business, store, office, government office,
school, organized event, or other operation, or an agent of such person, may not assume that someone who enters the facility without a face mask falls within one of
the exceptions specified in section 7 of this order, including the exception for
individuals who cannot medically tolerate a face mask. An individual’s verbal
representation that they are not wearing a face mask because they fall within a
specified exception, however, may be accepted.”12 Further, “schools are permitted
(and in fact recommended) to require a doctor’s note for persons seeking an
exemption from the face masks requirement.”13

4 Executive Order GA-29 at https://guides.sll.texas.gov/covid-19/mask-laws#s-lg-box-wrapper-28569276.
5 Executive Order No. 122 at https://www.nj.gov/governor/news/news/562020/20200408e.shtml.
6 Executive Order dated Oct. 29, 2020 at https://www.michigan.gov/coronavirus/0,9753,7-406-98178_98455-543708–,00.html.
7 https://www.adasoutheast.org/ada/publications/legal/ada-and-face-mask-policies.php
8 https://ocfs.ny.gov/main/news/2020/DOH-COVID-2020Apr17-Masks-EO20217.pdf.
9 https://coronavirus.health.ny.gov/system/files/documents/2020/04/doh_covid19_eo20216employeefacecovering_041420.pdf.
10 Executive Order No. 122 at https://www.nj.gov/governor/news/news/562020/20200408e.shtml.
11 https://faq.sll.texas.gov/questions/42856.

• In California, there is no clear guidance at the state level, however, residents are
encouraged to refer to the local county rules. Some counties require that persons
who are medically exempted from wearing a mask get that exemption in writing but
do not need to disclose the medical reason for having one. For Example, in San
Francisco: “If you have signed documentation showing a medical professional has
told you not to wear a face covering of any kind, you do not have to wear one. The
document does not need to explain your medical condition. The documentation
should include the contact and license information of the medical professional.”14

In sum, businesses are legally required to accept a medical exemption to any requirement to
wear a mask and are prohibited from requesting or requiring information or support for the medical exemption. Business that fail to abide by these requirements may be violating applicable federal and state laws, including those detailed above.15

Very truly yours,

Aaron Siri, Esq.