Behind the Mask

For the first three months of the pandemic, I worked from home to reduce the risk of contracting and spreading COVID-19 to my coworkers and clients. Starting in mid-June, I began working a few days a week in the office to sign documents with clients. We meet in a large conference room so we can socially distance, and everyone wears masks to be safe.

While I’ve had a more difficult time getting used to wearing pants (on video conferences, my clients can’t see my gym shorts), it has been an adjustment to wear a mask all day. But because I often meet with elderly clients, our office implemented a policy that all employees and visitors wear a face mask. We’ve been relying on the U.S. Centers for Disease Control and Prevention for guidance in these areas. Both the CDC and the World Health Organization agree that wearing a mask dramatically reduces the risk of transmission, as some people don’t know they are infected because they are either asymptomatic or pre-symptomatic.

According to CDC Director Dr. Robert R. Redfield, “We are not defenseless against COVID-19. Cloth face coverings are one of the most powerful weapons we have to slow and stop the spread of the virus – particularly when used universally within a community setting.”

Thankfully, our clients have been very understanding and cooperative with the policy, as wearing masks can be a bit inconvenient.

One of my clients indicated that her neighbor has COPD and was looking into obtaining a card from the U.S. Department of Justice that exempted her from having to wear a mask. The cards purportedly read, “Wearing a face mask poses a mental and/or physical risk to me. Under the Americans with Disability Act (ADA), I am not required to disclose my condition to you.” The cards also warn that any violations against the cardholder will result in a sizable fine.

The cards also appear to have the seal of the Department of Justice, as well as the seal and website for the Freedom to Breathe Agency.

However, there is no such thing as a face mask-exemption card. The DOJ released a statement saying, “The Department of Justice has been made aware of postings or flyers on the internet regarding the Americans with Disabilities Act (ADA) and the use of face masks due to the COVID-19 pandemic, many of which include the Department of Justice’s seal.”

It goes on to say that these cards “were not issued by the Department and are not endorsed by the Department,” and that the DOJ “urges the public not to rely on the information contained in these postings and to visit for ADA information issued by the Department.”

As I am writing this article, Walmart and Target just announced that they will now require all customers to wear masks in their stores. As the number of COVID cases rise, other businesses, and likely municipalities, will follow suit.

As an attorney, I get asked a lot if businesses requiring customers to wear masks is legal. In short, it is. Just like many retailers’ “No shirt, no shoes, no service” rule, businesses can implement policies for the safety and protection of their employees and other customers.

Policies that require customers to wear face masks are legal if they are necessary for the business to operate safely in providing its goods and services. At least during the pandemic, to quote Star Trek’s Mr. Spock, “the needs of the many outweigh the needs of the few.” Many businesses offer alternatives, such as curbside pick-up, carry-out or delivery options, and online sales, for customers who cannot comply with the face mask policy because of a disability or other reasons. For example, we offer ‘drive-by signings’ where clients can sign their wills and other estate planning documents without leaving their car.

Businesses requiring patrons to wear masks should prominently display notices at their locales and notify customers on their website so customers are not caught off guard and be prepared to accommodate those that can’t wear masks.

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Reg P. Wydeven

Elder Law and Estate Planning Attorney at McCarty Law LLP
Hoping to follow in his father’s footsteps from a young age, Reg’s practice primarily consists of advising individuals on estate planning, estate settlement and elder law matters. As Reg represents clients in matters like guardianship proceedings and long-term care admissions, he feels grateful to be able to offer families thorough legal help in their time of need.

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