JAMA on "Mask Exemptions During the COVID-19 Pandemic"

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These are excerpts from The Journal of the American Medical Association (JAMA) article 'Mask Exemptions During the COVID-19 Pandemic—A New Frontier for Clinicians' dated July 10, 2020. Authors were Doron Dorfman, LLB, JSD1; & Mical Raz, MD, PhD, MSHP2.

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"Clinicians have no obligation to provide a mask exemption to patients if it is not medically warranted. They do, however, have a clear obligation to address individual patients’ concerns, discuss appropriate alternatives, and offer clear recommendations for risk-reducing measures when patients are venturing into the public sphere."

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

...there is a dearth of guidance for clinicians on how to approach a request for an exemption.

Evidence for Exemption:

Few guidelines exist regarding medical exemptions.

In this evidence-free zone, clinicians must make individual determinations as to whether a patient should be exempt from mask wearing.

Clinicians are often reluctant to adjudicate questions of appropriate disability accommodations.

"Unfortunately, with the politicization of mask wearing, and individuals’ concerns regarding perceived infringement on individual liberties, methods to falsely claim a disability exemption have propagated across the internet and social media."

...Clinicians reasonably should question new and unsubstantiated claims of disability that emerge solely in the context of a contested masking requirement.

Nevertheless, there is a moral concern among the public that some people fake disabilities to gain advantages, such as getting extra time when taking tests, cutting lines in theme parks, or obtaining a favorable parking spot.

Clinicians should be aware of such bias when making their disability determinations to ensure they do not unnecessarily view a patient with suspicion while being cognizant of mask objectors who openly admit to manipulating disability law.

You can read the entire article here.

Here are tweets from the two authors of this JAMA article:

Rabia Belt and I are "Reweighing Medical Civil Rights" in @StanLRev Online. We respond to @CKonnoth's arguments abt medicalizing identities to win legal battles and point out to the seductive, yet misleading, allure of disability law in that regard. https://t.co/D1JWCxK9Of

— Doron Dorfman (@DorfmanDoron) July 2, 2020

When the plan is to allow little kids to sicken, with no attention to the teachers, families and communities who surround them, it may be time for a new strategy. Listen to the experts. https://t.co/oG8vAmSKva

— Mical Raz (@Mical_Raz) July 20, 2020