Advocates Seek to Reframe Masks as a Disability Accommodation

Jillian Mock

August 30, 2021

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As governors and legislatures in states such as Texas, Florida, South Carolina, and Arkansas have banned schools and other entities from implementing mask mandates, disability rights advocates have pushed back. In federal civil rights lawsuits, they argue that bans on mask mandates violate antidiscrimination laws protecting people with disabilities.

For unvaccinated and immunosuppressed individuals, masks can provide crucial protection from SARS-CoV-2.

People who are immunocompromised can harness the power of the Americans With Disabilities Act (ADA) to fight against bans on mask mandates and protect themselves in their workplaces, argues Mical Raz, MD, PhD, a professor at the University of Rochester and a physician at Strong Memorial Hospital, in Rochester, New York, in an article published in JAMA earlier this month with co-author Doron Dorfman, LLB, JSD.

Medscape Medical News talked with Raz about approaching mask requirements as disability accommodation during the COVID-19 pandemic. The following interview was lightly edited for length and clarity.

How did you come to think about mask requirements as a form of disability accommodation?

I saw a tweet from a professor at a university who said they couldn't ask students about their vaccination status or to wear a mask. All agency was removed from the professor to take care of and protect themselves. I thought, well, that can't be right. And ostensibly, that would be particularly dangerous for somebody with immunosuppression for whom the vaccine is not adequately protective. So, I called my friend, Doron Dorfman, and asked him to help me think through the legal part of this. We fleshed it out and wrote the article that same night.

How novel is it to view accommodations for people who are immunosuppressed through the lens of disability accommodation?

I think there has not been enough focus during the pandemic on individuals with disabilities or on how disability law can be mobilized during this pandemic to help supplement the public health law. This framework should be used a lot more because it's good for everybody, not just for individuals with disabilities.

For example, take what's called the "curb effect." If you expand sidewalks, yes, it helps individuals who use a wheelchair. But it also helps me as a mom with a stroller. It helps somebody with a shopping cart, or a kid with a bike. If we adopt policies that are inclusive to those who are disadvantaged, it's good for everybody. We should always strive to be an inclusive society, not just because it's the right thing to do but because it really makes our society better.

How can mask requirements be used as a form of disability accommodation, as you argue in the JAMA article?

The ADA requires employers to provide reasonable accommodations for disability. In this case, the disability is your immunosuppressive status. We have an abundance of evidence showing individuals who are immunocompromised and vaccinated are still inadequately protected from the SARS-CoV-2 virus. So, there is absolute data to show individuals with immunosuppression have a disability that requires accommodation.

The ADA has a mandate requiring employers to adjust or modify policies in order to accommodate a disability. There are certain situations in which you cannot or do not need to accommodate a disability, when it would fundamentally alter the kind of employment you offer or if it's an undue burden or hardship. But given that we've been wearing masks and working remotely for a year now, arguing that somehow these accommodations are no longer possible seems disingenuous.

In that way, allowing a person who's immunocompromised to require those around them to mask is a form of modified protective policies. And in this case, those policies line up with a public health good, masking in the face of the highly contagious Delta variant ravaging our country right now.

In your view, can this argument be used in the mask debates happening right now across the country?

This argument can and should be useful for a couple of different lawsuits that are now underway in different states. I hope our article will provide further support for those suits. And I hope in school board hearings, when parents and teachers are talking about their concerns, this could be one way to argue for why we should allow mask mandates in classes. I've received emails from parents who said they're going to bring this article to their school board hearing.

I also hope this could shift the narrative around the pandemic. Instead of focusing on individual responsibility — I got my vaccine shot so I'm fine — let's focus on how we create an inclusive environment where we protect everybody, including those who cannot be vaccinated because of age or disability, or those who are vaccinated but inadequately protected because of their underlying conditions.

In the JAMA article, you talk about how our pandemic response has focused on individual health and how that individual focus can be ableist. Can you explain that point?

I think this idea that we just make our choices — like whether to get vaccinated or wear a mask, or not — and live with it really perpetuates a highly individualistic and ableist mindset. It doesn't consider the people I admit to the hospital who are vaccinated but have a heart transplant and didn't mount the sufficient immune response. Or even the people who chose not to be vaccinated because they were exposed to hours and hours of misinformation on TV.

We like to individualize everything, focusing on personal responsibility and choices, but a pandemic is one of those moments where everybody's choices affect everybody else. Laying responsibility at the doorstep of each person, rather than thinking about what steps we as a society could be taking, is cheap and politically expedient. There is no public health rationale behind the bans on mask requirements in states like Texas, Iowa, and Florida. These choices are about politics. And the price is always borne by the most disadvantaged among us.

Jillian Mock is a freelance science journalist based in New York City. She writes about healthcare, climate change, and the environment. Her work has appeared in many publications, including the New York Times, Audubon Magazine, and Scientific American.

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