The claim: Disability and civil rights laws protect the right to shop without a mask or proof of vaccination
Throughout the COVID-19 pandemic critics of mask and vaccination requirements have falsely claimed several laws exempted them from generally applied health protocols.
The latest claim uses a misguided interpretation of the Americans with Disabilities Act and the Civil Rights Act of 1964 to encourage others not to comply with businesses that require face coverings or proof of vaccination upon entry.
“My legal right to enter, shop and be served at this establishment – without covering my face or showing proof of (vaccination) – is protected by state and federal law,” claims the image in an Aug. 23 Instagram post.
The image goes on to falsely claim federal regulations protect individuals from having to comply with businesses’ mask and vaccine requirements.
However, experts say none of these laws offer blanket protection from mask mandates or vaccine requirements.
The card comes from a website that has sold mask exemption cards before
Text at the bottom of the image urges viewers to visit TheHealthyAmerican.org.
This website sold supposed religious mask mandate exemption cards in August 2020. Those cards falsely claimed to offer customers an exemption to mask mandates under the Civil Rights Act of 1964.
USA TODAY debunked that claim and several others that urged the public to avoid mask and vaccine requirements by claiming exemptions under the ADA, the Fourth and Fifth amendments and the Health Insurance Portability and Accountability Act (HIPAA).
Experts have said none of these laws offer individuals blanket protection from mask mandates or rules that require customers to show proof of vaccinations.
Peggy Hall, founder of the Healthy American, told USA TODAY she stands by the claims made in the card and disagreed with legal experts who said otherwise.
"Your legal experts are the not the authors of the Constitution," she said.
Legal experts say ADA does not exempt individuals from following public health guidelines
Several disability law experts told USA TODAY the card misrepresents the ADA and has no legal basis for the assertions it makes.
“This is a bogus card that has no authority,” said Peter Blanck, a professor of disability and social policy at Syracuse University. “There is no blanket card that would protect anyone from following a mask mandate or showing proof of vaccination.”
Robert Dinerstein, director of American University’s Disability Rights Law Clinic, told USA TODAY this post conflates unrelated regulations from the ADA and Civil Rights Act. He said neither can be applied as blanket exemptions from mask mandates or requirements that call for customers to show proof of vaccination.
The ADA prevents public accommodations from denying opportunities to disabled people or providing them with unnecessary separate and unequal conditions based on their disability.
Experts agree that the regulations laid out by the ADA only apply to accommodation for those with disabilities.
“The Americans with Disabilities Act does not cover everyone. It doesn’t even cover every person with a functional impairment,” said University of Pennsylvania professor of law Jasmine Harris. “The protected class of individuals with disabilities under the ADA must meet a legal definition of disability defined by Congress.”
But that doesn’t mean those with disabilities are exempt from laws implemented to protect public health. Under the ADA, businesses are not required to provide services or accommodation if “that individual poses a direct threat to the health or safety of others.”
Instead, businesses must offer disabled patrons reasonable modifications to public accommodation if possible.
Dinerstein said that may look like a restaurant requiring guests who cannot safely be vaccinated to observe social distancing or eat outside.
Blanck said another example may be a grocery store providing curbside pickup to customers that could not wear face coverings due to disabilities.
Harris said a modification may look like home delivery for those who cannot safely follow health guidelines in stores.
“Of course, a place of public accommodation, while given latitude to set objective safety criteria, must base such criteria on objective data/requirements and not use this as pretext for discrimination or base these requirements on generalizations or stereotypes about an individual’s disability,” said Harris. “Given the CDC’s research, data, and guidance, mask requirements very likely meet the standard of objectivity.”
According to Dinerstein, even those with disabilities cannot use the ADA as a blanket exemption from safety criteria that they personally oppose.
“If a person with a disability simply did not want to wear a mask or disclose his or her vaccination status not because of their disability but for another reason – say, a belief in libertarianism – that would not be a valid ADA claim,” he said.
Civil Rights Act of 1964 also does not apply
Experts say the other law referenced in the card, the Civil Rights Act of 1964, also does not grant individuals a blanket exemption.
“The Civil Rights Act would only be applicable if the establishment refused to serve the potential customer on the basis of race or gender – or, now, sexual orientation – and not because of disability,” said Dinerstein.
In August 2020, several other law professors told USA TODAY the Civil Rights Act does not protect anyone from mask mandates as long as rules are neutral and generally applied.
“Contrary to what this card is saying, federal law cannot get you an exemption from a neutral, generally applicable state law," said Noah Feldman, a constitutional studies specialist at Harvard Law School.
Our rating: False
Based on our research, we rate FALSE the claim that federal disability and other civil rights laws protect the right to shop without a mask or proof of vaccination. Legal experts agree that the ADA cannot be used as a blanket exemption for anyone from mask mandates or vaccine requirements. The ADA only protects from discrimination those that meet the legal definition of having a disability. Even those with disabilities cannot use the ADA as a blanket exemption from public health guidelines and requirements. Instead, stores must offer reasonable modifications to customers who medically cannot comply with public health guidance so they may safely obtain goods and services without risking the health of others. The Civil Rights Act of 1964 protects individuals from discrimination on the basis of race, gender and sexual orientation. Neutral and generally applicable mask mandates and vaccine requirements do not violate the Civil Rights Act.
Our fact-check sources:
ADA.gov, Jan. 17, 2017, Americans with Disabilities Act Title III Regulations
OurDocuments.gov, accessed Aug. 23, Transcript of Civil Rights Act (1964)
USA TODAY, Aug. 6, 2020, Fact check: Civil Rights Act of 1964 does not create religion-based exemption from mask mandates
USA TODAY, July 15, 2020, Fact check: ADA does not provide blanket exemption from face mask requirements
USA TODAY, July 19, 2020, Fact check: No mask? You can ask why — it isn’t against HIPAA or the Fourth or Fifth Amendments
Peter Blanck, Aug. 23, Phone exchange with USA TODAY
Robert Dinerstein, Aug. 23, Email exchange with USA TODAY
Jasmine Harris, Aug. 23, Email exchange with USA TODAY
ADA.gov, accessed Aug. 24, Excerpted from the "ADA Title III Regulation 28 CFR Part 36"
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This article originally appeared on USA TODAY: Fact check: Card falsely claims to grant mask and vaccine exemptions