COVID-19 and Face Mask Litigation

Updated: May 17, 2021

October 30, 2020

By: Robert Turner

With the rapid spread of COVID-19 across the United States, one of the most effective (and politicized) ways to combat the disease is the use of face masks and other face coverings. We all know that many state and local governments have issued orders requiring face masks in public and we have all seen public buildings and stores with signs posted on their front doors requiring face masks for entry. While these orders and policies have been instituted to try and protect the public, they have not gone without their share of criticism, and with that, litigation. One area of recent litigation has been for violations of the Americans with Disabilities Act (“ADA”).

One example comes out of California Superior Court in Cali Bunn v. Nike, Inc. This case centers around Nike’s policy requiring employees of its California retail stores to wear face masks at all times to protect customers from COVID-19. It is alleged that this policy violates the ADA by discriminating against customers who are deaf or hearing impaired by preventing them from reading lips and facial expressions. Specifically, at issue here is the company policy requiring employees to wear opaque masks supplied by Nike. The proposed class of deaf Nike customers allege that the policy creates embarrassing and demeaning situations that “depriv[ed] [them] of the friendly and personalized customer service that Nike’s hearing customers enjoy, solely because [they] ha[ve] a disability.” This policy thereby deprives those customers of the ability to ask for assistance or interact with sales associates.

Another example comes out of Western District of Pennsylvania in which more than sixty (60) individuals filed a complaint against Giant Eagle Inc. under the ADA. Here, the plaintiffs allege that due to a myriad of reasons, including respiratory limitations, asthma, anxiety, and post-traumatic stress disorder, they are not able to comply with Giant Eagle’s mask policy to enter its grocery stores. As recently as October 23, 2020, U.S. District Judge Nora Barry Fischer sided with Giant Eagle when individual Plaintiff Josiah Kostek sought a preliminary injunction to stop the grocer from enforcing its mask policy. In ruling against Kostek, Judge Fisher noted that Kostek, who has pleaded anxiety and post-traumatic stress discrimination, was not likely to succeed on the merits of his claim under the ADA and that he had not shown his disability prevented him from complying with the mask policy. Judge Fischer specifically noted Kostek had not shown why he could not wear a face shield in lieu of a mask. In defense of its policy, Giant Eagle cited the United States Supreme Court’s 1987 decision School Board of Nassau County v. Arline as authority for a “direct threat exemption.” This exemption states that a business does not have to accommodate customers who pose a direct threat to the health of staff and other customers.

These lawsuits, and others like them, show that we have entered uncharted territory of COVID-19 litigation. One thing is clear, businesses should be careful when attempting to balance complying with government orders and guidelines, their own desire to keep their employees and customers safe, and providing reasonable accommodations under the ADA. Businesses should always be mindful of the ADA and consider reasonable and economical alternatives (e.g. clear face covers, curbside pickup, and contactless services) to mask policies to avoid potential litigation.

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