Mask Exemptions During the COVID-19 Pandemic—A New Frontier for Clinicians

To mask, or not to mask, that is the question. Americans obsess about their freedoms, the constitution was written to protect them. It was originally intended to prevent despots from suppressing the possibility of overthrowing a government by allowing contrary views. Since 1776 many have taken the liberty of using it for other purposes. Historically many individuals and groups have repurposed the amendment II to validate their argument. This is also true for many. constitutional amendments.

What are the risks of not masking? It depends on where you are and how many other individuals are close to you. That begs the questions, how close, and what locations?

In an article by The Journal of the American Medical Association Doron Dorfman,LLB, JSD; Mical Raz, MD, Ph.D., MSHP write about exemptions for disability under the definition of the Americans with Disability Act (ADA). This further confounds the answer. Dorfman and Raz make a rational if not more complex about wearing masks during a pandemic.

Masking or face covering amid the global coronavirus disease 2019 (COVID-19) pandemic has emerged as a highly polarizing practice, with surprising partisan divisions. While masking remains contentious, there is bipartisan agreement among policymakers that medical exemptions for masking are necessary and appropriate. Yet there is a dearth of guidance for clinicians on how to approach a request for an exemption. We analyze the medical and legal standards to guide this debate.

Medical Exemptions

Few guidelines exist regarding medical exemptions. Beyond the CDC’s recommended exemptions—children younger than 2 years, people with difficulty breathing, and anyone unable to place or remove the mask—there are certain categories of disability that undoubtedly warrant medical exemptions. In this evidence-free zone, clinicians must make individual determinations as to whether a patient should be exempt from mask-wearing. Some individuals, particularly children, with sensory processing disorders may be unable to tolerate masks. Facial deformities that are incompatible with masking are an additional category of exemption. Other situations, such as chronic pulmonary illnesses without an active exacerbation, are less clear. An individual with a chronic pulmonary illness is at higher risk for severe disease from severe acute respiratory syndrome coronavirus 2 (SARS-CoV-2), the virus that causes COVID-19. Conversely, if that same individual were infected with SARS-CoV-2, he or she would likely also be at higher risk for spreading viral illness because many pulmonary illnesses are associated with a chronic cough. There is a risk-benefit ratio that must be carefully considered. Professional societies would provide a valuable service to clinicians if they could provide clear guidelines that include objective measures, such as a decrease in pulse oximetry results, to guide determinations. It is likely that chronic pulmonary disease in itself is a compelling reason for masking, rather than a category of exemption.

Legal Grounds for Exemption

A medically necessary exemption from masking is considered a disability modification under the Americans With Disabilities Act (ADA). Individuals with disabilities have clearly defined legal protections under both federal and state law. Title II of the ADA prohibits disability discrimination in “programs and activities of state and local government entities.” Title III prohibits disability discrimination “in the full and equal enjoyment of…services” at places of “public accommodation.” These are privately owned establishments and include restaurants, hotels, and grocery stores, which may require customers to mask. The “full and equal enjoyment” standard can be fulfilled via the use of “reasonable modifications in policies, practices, or procedures.” A reasonable disability modification might be a masking exemption, but this is not the sole remedy. Amid a global pandemic, reasonable accommodations for masking intolerance can and should include avoidance measures, such as curbside services and delivery.3

Employers can legally require masking at their workplace, and workers may be asked to provide medical documentation for an exemption. This presents a unique challenge to clinicians who understand the necessity for individuals with disabilities to maintain job security. Yet few medical conditions are truly incompatible with all forms of mask-wearing, and the same guiding principles of preserving public health and reducing individual risk remain relevant. As other workers cannot reasonably exempt themselves from the presence of an unmasked coworker, workplace accommodations should be conceptualized in a broader framework than a simple mask exemption. These accommodations might include remote work, placement in non–public-facing positions, or, under certain conditions, leave. These may all be considered reasonable accommodations under title I of the ADA, which regulates employment.⁴

Employers restaurants and other public gathering places may utilize methods to ensure distancing.

The solutions beg creativity