Are You Covered? Warnings From Recent Face Mask Litigation

Excerpted from Lexology by Morrison & Foerster LLP

While the use of masks to combat the spread of COVID-19 has become a politicized issue in the United States, the scientific community largely agrees that wearing face coverings is one of the most effective ways to slow infections.[1] State and local governments have issued orders requiring residents to wear masks in public, with some advising employers to provide their employees with face coverings or reimburse the reasonable cost of obtaining one.[2] Governor Gavin Newsom of California, for example, has issued a number of mandates to slow infections. One of those mandates is that all individuals must wear a mask or face covering in public or common spaces statewide. Federal agencies such as the CDC and OSHA have issued non‑binding guidelines that also advise people to wear masks in public.[3]

It might seem that as long as businesses comply with these federal, state, and local requirements and guidelines regarding masks, they can expect to be shielded from lawsuits related to their mask-related policies.[4] A few recently filed putative class action lawsuits, however, show that plaintiffs and their attorneys are nevertheless seeking ways to turn mask issues into litigation.

Mask-Related Lawsuits Alleging Violations of the Americans with Disabilities Act (“ADA”)

The ADA prohibits discrimination against people with disabilities in employment (Title I)[5] and in places of public accommodation (Title III).[6] In recent months, several plaintiffs alleging disabilities have filed lawsuits claiming that businesses they have frequented violated Title III of the ADA by denying the plaintiffs public accommodations due to the businesses’ mask policies.
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