COVID-19 state mask mandates can't be avoided using HIPAA or constitutional 'exemptions'

And it is neither morally nor legally defensible to knowingly skirt mask requirements.
Image: Maskless rally
Attandees at an anti-mask rally in Madison, Wis., on July 23, 2020.Steve Apps / Wisconsin State Journal via AP file

At the end of July, a bowling alley in Wisconsin reportedly posted a picture letting prospective bowlers know they could go mask-less — without being asked why. Despite frequent fact checks, there have been several viral examples this summer of businesses informing customers via social media or storefront signs that while states may mandate masks, such intrusive questions are prohibited by the Health Insurance Portability and Accountability Act (HIPAA) and the Fourth Amendment of the U.S. Constitution.

In effect, such businesses seem to be suggesting they simply cannot enforce state mask requirements. The signs usually begin with something pointed like, “Our governor has ordered…” or “Those in government have ordered….” and may end with, “we respect the rights of all.”

As is often the case with misinformation, such declarations might be written to appear like a public service announcement to help customers understand their rights, or a statement of appreciation of all customers, masked or mask-less — but often neither is the case. And as we hear continued reports of violent confrontations between masked and unmasked shoppers, such misinformation, inadvertent or not, is harmful on several levels.

First of all, the claim that businesses can’t ask about mask compliance is baseless. HIPAA does protect people’s private health information, but it only covers certain entities — like health care providers and health insurance companies — who must protect the information they already have. So it’s not about asking people about their medical conditions and it doesn’t apply to stores and entertainment establishments anyway.

The Fourth Amendment reference is even more of a stumper. This amendment protects against unreasonable search and seizure from the government. In fact, all of our Constitutional rights protect us from government intrusion, not the actions of businesses. Plus, asking a question is not a “search and seizure.” Even the Fifth Amendment (which, again, restricts the government and is also oddly referred to by some opposing mask requirements) allows incriminating questions to be asked even if it protects people from answering them.

It’s true that a person might claim the government is violating their rights by mandating that they wear a mask. But that argument has already been rejected by several courts.

It’s true that a person might claim the government is violating their rights by mandating that they wear a mask. But that argument has already been rejected by several courts — including in Florida and Virginia — and we should expect other judges to reject it as well. Government powers in a public health emergency are quite expansive. And people’s constitutional rights are never absolute. If the government has a compelling reason to restrict individual liberties and does so in a reasonable way, its actions are likely to be upheld.

For example, if the government can legally mandate a small pox vaccination in the event of a small pox outbreak — as determined by a famous 1905 case, Jacobson v. Massachusetts, it can mandate that people wear masks when they shop indoors during a deadly pandemic. The Supreme Court wrote at the time that “[r]eal liberty for all could not exist under the operation of a principle which recognizes the right of each individual person to use his own, whether in respect of his person or his property, regardless of the injury that may be done to others.” A Palm Beach County judge was more to the point: “We do not have a constitutional right to infect others,” he wrote in July.

The Supreme Court did recognize back in 1905 that for certain individuals, a medical exemption from vaccination might be warranted. Such exemptions have long existed for mandatory state childhood immunizations required for school attendance.

Current mask mandates also have exceptions for people with medical conditions that would make it unsafe for them to wear a mask. Virginia’s early mandate made clear that people would not have to carry around documentation to prove their medically exempt status. But a later Albemarle County, Virginia, mandate closed what began to look like an exploitable loophole. Under that county’s new ordinance, a person claiming a medical exemption for in-person business entry would need to provide documentation and prove that they could not be accommodated outside.

In contrast to the Constitution, the Americans with Disabilities Act does apply to businesses. But a business — even without a government order — could certainly require people to wear masks (like shoes and shirts). It would need to provide “reasonable accommodations” to “a person with a disability” who was “otherwise qualified” to be present in the business — all legal terms with complex applications that provide less protection than many likely imagine. “Reasonable accommodations” for shopping, for example, might include curb-side service. And proof of a disability has always been central to claims of discrimination or requests for accommodation.

The bottom line, though, is that neither the Constitution nor the ADA means that customers without masks — even customers with a qualifying disability — can insist on bowling or shopping freely among others during a pandemic when masks are one of the best tools we have against spread of the disease.

Business owners posting signs about people’s rights to essentially ignore mask mandates are likely expressing an overblown sense of entitlement regarding their own rights, and may even be trying to appeal to customers who feel the same way. But while claiming to be upholding the rights of all customers, businesses allowing such alleged exemptions would actually be treating customers unequally. Ultimately, it is neither morally nor legally defensible to allow customers to knowingly skirt mask requirements, a choice that puts both their health and the health of those around them in jeopardy.