Mask Mandates in Schools and Workplaces

With students returning to schools and the COVID-19 delta variant continuing to spread, many schools and employers are faced with the difficult decision of how to implement and enforce policies regarding mask use which comply with state and local regulations. The overwhelming consensus of scientific data supports the wearing of masks indoors to slow the spread of viruses such as COVID-19. However, the requirement of mask use in public spaces has caused significant cultural divisiveness in the United States.

This discord has created a difficult situation for many institutions such as schools and employers who wish to protect the health and safety of their students and workers while also addressing the concerns of people who are hesitant about mask use. While these waters may seem hazardous, it is possible to navigate them without running aground.

First, there is no federal or California law which bar a private or public entity from requiring mask use. To the contrary, recent guidance from the California Department of Public Health requires the wearing of masks indoors by all individuals in many public settings, including K-12 schools. The Department also requires mask use for unvaccinated individuals in all indoor public settings and businesses. Therefore, a school may require its students to wear masks while on school grounds even outside. Similarly, employers may require employees to wear masks regardless of vaccination status. However, medical or religious exemptions may apply for certain people.

For a school or employer to meet its legal obligations, it must continue to follow and apply the laws already in place related to health. This includes the federal Americans with Disabilities Act, the Civil Rights Act, and the California Fair Employment and Housing Act. These laws require schools to provide reasonable accommodation for students with mental or physical disabilities which limit one or more of the students’ major life activities. Similarly, employers must provide reasonable accommodation for employees with disabilities. Schools and employers must provide an accommodation so long as it would not create an undue burden.

An undue burden may be a restriction that negatively impacts “legitimate safety requirements that are necessary for safe operation” of the business. A school or employer may also deny an accommodation where a person’s disability presents a “direct threat” to the health or safety of other people. Because a COVID-19 outbreak would affect the safe operation of any school or business and directly threaten the health of other people, it may be justification for denial of a request for accommodation.

This legal framework applies to mandated mask use in schools or workplaces. If a student has a disability that impairs their use of a mask, the school must engage in an interactive process to ascertain a reasonable accommodation for the student. If an accommodation exists that is not unduly burdensome and does not threaten the health of other students, then the accommodation would be mandatory. This rule also applies to employees and employers. Individuals who may require accommodation include those with a medical condition for whom wearing a mask could obstruct breathing, those who are unable to remove a mask without assistance, and persons communicating with the hearing impaired.

The important thing to remember is that a school or employer should treat a request for a mask exemption by utilizing the same procedures already in place for accommodating individuals with disabilities. Given the frequent changes in federal, state, and local agency guidance, this may be easier said than done. Helpful questions to ask someone requesting a mask exemption include the reason for the exemption request. For example, does wearing a mask negatively affect the person’s health? A school or employer may also ask the reason other options would be insufficient, such as the use of a face shield with a drape. Consultation with an experienced employment attorney can aid in handling mask exemption requests and avoiding expensive litigation.

This communication may be considered advertising in some jurisdictions. It is intended to provide general information about legal developments and is not legal advice. If you have questions about the contents of this alert, contact Kellen Crowe or Peter Glaessner at Allen Glaessner Hazelwood & Werth LLP.