Behind The Dumb Meme That Disability Law Exempts You From Wearing A Mask At Costco

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May 21, 2020 3:17 p.m.
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A long shot Republican congressional candidate was sick of “the people’s republic of Illinois.”

A flat-earther at a California supermarket threw a fit at the entrance, threatening a lawsuit.

A pal of the anti-government extremist Ammon Bundy’s in Idaho excitedly told supporters, “You don’t have to wear a facemask to Costco (or anywhere else for that matter).”

“Have fun shopping!” he advised.

The trio were part of a small but vocal movement of Americans who just can’t abide rules requiring masks in order to slow the spread of COVID-19.

Rather than donning the face coverings, some anti-maskers have attempted to cite federal law to circumvent the rules. As discontent with mask requirements spreads online, protesters have found solace in an odd little print-out that claims the Americans with Disabilities Act and HIPAA, the medical privacy law, shield them from their local grocery store’s mask rule.

Legal experts tell TPM the flier is ridiculous.

After surfacing in early May, the flier’s dubious legal advice has spread throughout the country on social media networks like Facebook, Twitter and iFunny — and, eventually, into real life confrontations.

“I have a medical condition that I’m not allowed to wear a mask, and I’m not required by HIPAA rules and regulations to disclose that,” the would-be Gelson’s shopper Shelley Lewis — who internet sleuths later uncovered is a prominent flat earth activist — told a store manager earlier this month.

The Gelson’s manager resisted, suggesting instead that he could do her shopping for her. Lewis refused — and posted a video of the encounter that earned her a day of internet infamy.

“It’s just a blatant violation of our civil rights,” James Marter, the Illinois congressional candidate, told TPM Tuesday of the mask rules. “No question about it.”

“You’re denying entry to someone that’s come in from the public to a public place to buy things, and it may be a private business, but you’re denying it based on an unconstitutional order from the governor,” Marter said separately. “I’d call that a civil rights violation.”

The flier, indeed, encourages skeptics to call the Justice Department’s ADA Information Line.

The only problem, ADA experts told TPM, is that the law essentially says the exact opposite of what the protesters claim it does.

“There is no way, in my opinion, to win this lawsuit,” said Marc Dubin, a former Justice Department trial attorney and now a consultant and expert witness on the ADA. “Even if you are a person with a disability.”

“If this went to court, a store would be found to be within their rights to require people to wear masks,” said Andrew Imparato, executive director of Disability Rights California, a non-profit that represents people with disabilities in court.

The legal reasoning is pretty straightforward: COVID-19 can spread even without symptoms, and masks mitigate that risk. Yes, there are disabilities that preclude people from wearing masks — severe facial burns, for example, or breathing problems — but businesses aren’t obligated to endanger shoppers in response. Rather, they can make accommodations, such as curbside pickup, for those unable to wear a mask.

The law makes exceptions for “legitimate concerns, such as the need to avoid exposing others to significant health and safety risks.”

“Businesses have a right to keep their customers and employees safe,” said Dubin, who was one of the first attorneys hired by the DOJ’s Disability Rights Section in the early ‘90s. “They should be citing the ADA as the reason to keep [mask protesters] out, not as a mandate to let them in.”

But a lack of legal expertise hasn’t stopped protesters before, and — as observers like the @BadLegalTakes Twitter account have tirelessly documented — that’s certainly true in this case.

Despite the fact that the American public, and even Republican voters, overwhelmingly tell pollsters that wearing masks is a matter of public health rather than personal choice, a vocal minority refuses to play by the rules.

Earlier this month, an email from the anti-mask crusader and Ammon Bundy associate Diego Rodriguez informed supporters, “You Don’t Have to Wear a Face Mask to Costco.”

“God Bless the FREE MARKET because people are always coming up with genius ways to circumvent stupidity,” he wrote, next to a link to the bunk ADA flier.

Rodriguez wrote that he’d gotten a copy of the image from a friend. “If EVERYONE used this form, Costco would be shamed into realizing their own stupidity and the futility of their effort,” he said. “Have fun shopping!”

“My sense is that people are getting this on social media from right-wing sources and printing them out on their home computers and taking them with them,” said Imparato, of Disability Rights California.

“I don’t think they’re particularly worried about disability discrimination, they’re just trying to use this as a way to intimidate businesses to let them not wear a mask.”

Marter, the congressional candidate, granted to TPM that there are “attorneys that know better than I do” what the ADA requires of private businesses.

But he stood by sharing the flier on his Facebook page.

“We’re not getting into the counterarguments against it,” he said. “We’re just sharing out some information we found useful that seemed to be, let’s say, above-the-board and passed the smell test of being true.”

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