Editor’s Note: This article is intended for information purposes only. Because state and municipal laws vary greatly, as do the circumstances of individual cases, readers are advised to contact an attorney for specific legal advice. © Scott C. Tips 2020
Note: The views and opinions expressed here are those of the author(s) and contributor(s) and do not necessarily reflect those of the publisher and editors of WholeFoods Magazine.
Everywhere I go these days, I see armies of masked men and women. These masked people are not bandits, nor are they extras in a sci-fi film. Rather, these are people who are either genuinely concerned about protecting themselves (and others) from the COVID-19 virus or else are only wearing the masks due to peer pressure and/or a belief that State or other legislation, rules, or regulations mandate their use. There are staunch advocates on both sides of this face-mask divide (1).
On April 6, 2020, with the COVID-19 pandemic in full swing, the WHO issued its first guidelines, which recommended that members of the general public “only need to wear a mask if you are taking care of a person with COVID-19” or “if you are coughing or sneezing” (2). Two months later, WHO’s updated interim guidance replaced that with, “governments should encourage the general public to wear masks in specific situations and settings as part of a comprehensive approach to suppress SARS-CoV-2 transmission” (3).
The CDC agrees. In its online pages about masks, it states that “To reduce the spread of COVID-19, CDC recommends that people wear cloth face coverings in public settings when around people outside of their household, especially when other social distancing measures are difficult to maintain” (4).
Other medical authorities jumped on the bandwagon or were already there. Keep in mind that in the United States, each State has a Department of Public Health as well as local health boards or agencies. These departments, boards, and agencies assert authority to issue public-health orders such as stay-at-home, forced separation of six feet, and wearing masks. Generally, each State and local public-health agency or department may issue its own health orders (5). So, to know whether you and your employees must wear masks, you must consult both your local health board as well as your State Department of Public Health. Generally, these boards and departments simply adopt whatever guidance the WHO and CDC have issued; but not always. One excellent listing, State by State, of coronavirus health orders has been compiled by Littler Mendelson as of July 3, 2020, and can be accessed here: https://www.littler.com/publication-press/publication/facing-your-face-mask-duties-list-statewide-orders.
At press time, the California Department of Public Health (CDPH) guidance (6), for example, updates an earlier April 1, 2020 guidance that stated, among other things, that “It does not mandate that face coverings be worn state-wide” (7). Now, the updated CDPH wording for face coverings is no longer voluntary, using statements such as this guidance “mandates that face coverings be worn state-wide in the circumstances and with the exceptions outlined below.”
Similarly, New Jersey mandates that customers and employees of essential retail businesses (retail, restaurants, manufacturing, warehousing, and essential construction) must wear cloth face coverings inside the business, and businesses may decline entry to customers not wearing a covering.
On the other hand, Governors in Alabama, Arkansas, Louisiana, Montana, South Carolina, South Dakota, Tennessee, and Utah have all invoked a “personal responsibility” message over issuing strict, statewide mandates (8). Masks are not typically mandated in these States. This contrasts with the strict mask orders for public workplaces dictated by the Governors in California, New Jersey, New York, and Washington.
Guidance Is Opinion, Not Law
People tend to treat agency “guidance” or guidelines as the legal equivalent of legislation and administrative rules and regulations when they are not. Remember, a guidance is a term in administrative law used to describe a variety of documents created by government agencies to explain, interpret, or advise interested parties about their rules, laws, and procedures. Guidance documents clarify how these agencies administer their regulations and programs. However, they are not legally binding in the same way as rules issued through one of the rulemaking processes of the Administrative Procedure Act (APA) (9). And this is true regardless of whether the guidance uses such terms as “must” or “may not” within the document.
Federal courts have found that such guidance documents can both be challenged and not challenged in court (10). In my not-often-shared opinion, guidance issued by administrative agencies simply does not have the force of law because it has not gone through proper APA or other similar protective procedures that provide citizens with notice and the opportunity to comment or object. Guidance is only suggestive and instructing, never compulsory.
Why Mask Mandates Are Problematic
By law, an employer is required to provide its employees with a workplace “free from recognized hazards that are causing or are likely to cause death or serious physical harm to his employees” (11). Face masks themselves can actually present hazards in the workplace (especially when worn for prolonged periods of time), inducing such conditions as hypoxia, headaches, increased viral load, and more (12). And a government health-department or agency requirement for the wearing of masks does not automatically protect employers from the workplace liabilities that come with them. It is also both unethical and unconstitutional to force healthy citizens to follow mandates that can result in their physical and emotional harm.
Also, the CDC guidance states that employees should wash their hands “after putting on, touching, or removing cloth face coverings.” So, every time that employees touch their masks, they must wash their hands (13).
Furthermore, the Americans with Disabilities Act of 1990 (ADA) mandates that “[n]o individual shall be discriminated against on the basis of disability in the full and equal enjoyment of the goods, services, facilities, privileges, advantages, or accommodations of any place of public accommodation by any person who owns, leases (or leases to), or operates a place of public accommodation” (14). Some States, such as California, have their own laws that prohibit disability or medical-condition discrimination (15). This arguably means that if a person has a medical condition or disability (i.e., significant impairment) that prevents him or her from wearing a mask, then that person does not have to wear a mask. In fact, the ADA even states that the owners or representatives of the public accommodation may not even ask a potential employee what his or her disability is (16)! Some have argued that this prohibition on inquiry also applies to the general public as well, but that is less clear.
Regardless, what is clear is that what is often pushed upon us as a “mandatory” requirement to wear a mask is not in fact always mandatory. Often, there is no legislation, rule, or regulation supporting such mandate. People simply accept the story that has been parroted that a mandate exists. Check carefully the wording underlying your State and local health board “mandates” and do not simply accept their word that masks are legally required.
As a general rule, legislation, rules, and regulations tend to lag behind the science, if any, supporting such government action. Too often, they are coldly calculated to exploit an emotional crisis. That is exactly the case here. Whether you are guilted or truly mandated into wearing a mask, realize that the science is against its efficacy in preventing the spread of any virus (17). And it may not even be required for you, your employees, or your customers to wear a mask. With a survival rate of 95.7% (18)], we should instead be asking what is the real reason behind the coronavirus hysteria that necessitates mask and other mandates. COVID-19 cases might be temporarily increasing in parallel with increased testing, but the real indicator is that death rates, which, at press time, are plummeting (19).
(1) Austen Erblat, “Masks are putting people at each other’s throats, especially in Palm Beach County,” Sun Sentinel, July 4, 2020, at https://www.msn.com/en-us/news/us/masks-are-putting-people-at-each-others-throats-especially-in-palm-beach-county/ar-BB16jsXh.
(2) WHO staff, “Advice on the use of masks in the context of COVID-19: interim guidance,” WHO, April 6, 2020, at https://apps.who.int/iris/handle/10665/331693.
(3) WHO staff, “Advice on the use of masks in the context of COVID-19,” WHO, June 5, 2020, at https://www.who.int/publications/i/item/advice-on-the-use-of-masks-in-the-community-during-home-care-and-in-healthcare-settings-in-the-context-of-the-novel-coronavirus-(2019-ncov)-outbreak.
(4) CDC staff, “About Cloth Face Coverings,” CDC, last reviewed June 28, 2020, at https://www.cdc.gov/coronavirus/2019-ncov/prevent-getting-sick/about-face-coverings.html.
(5) ASTHO/NORC, State Public Health Agency Classification: Understanding the Relationship between State and Local Public Health, 2012, at https://www.astho.org/Research/Major-Publications/ASTHO-NORC-Governance-Classification-Report/.
(6) CDPH, “Guidance for the Use of Face Coverings,” California Dept of Public Health, June 18, 2020, at https://www.cdph.ca.gov/Programs/CID/DCDC/CDPH%20Document%20Library/COVID-19/Guidance-for-Face-Coverings_06-18-2020.pdf.
(7) CDPH, “Face Coverings Guidance,” California Dept of Public Health, April 1, 2020, at https://www.cdph.ca.gov/Programs/CID/DCDC/Pages/Face-Coverings-Guidance.aspx.
(8) Kimberlee Kreusi, “Governors stress ‘personal responsibility’ over virus orders,” AP, July 4, 2020, at https://apnews.com/abd3150c6329984133126c805b5131b0.
(9) Ballotpedia, “The Administrative State,” Ballotpedia, undated, at https://ballotpedia.org/Guidance_(administrative_state)#:~:text=Guidance%20is%20a%20term%20in,agencies%20administer%20regulations%20and%20programs. See also Ballotpedia, “The Administrative Procedure Act,” undated, at https://ballotpedia.org/Administrative_Procedure_Act.
(10) Granholm RC & Showalter JM, “Don’t Miss the Memo: Recent Cases Clarify When Agency Guidance Documents Can be Challenged,” Energy & Environmental Law Adviser, Sept 4, 2019, at https://www.energyenvironmentallawadviser.com/2019/09/dont-miss-the-memo-recent-cases-clarify-when-agency-guidance-documents-can-be-challenged/.
(11) See 29 U.S.C. §654(a)(1) at https://www.law.cornell.edu/uscode/text/29/654.
(12) See, e.g., Beder A, et al., “Preliminary report on surgical mask induced deoxygenation during major surgery,” Neurocirgia, 2008, 19:121-126, at http://scielo.isciii.es/pdf/neuro/v19n2/3.pdf (hypoxia); Jacobs JL, et al., “Use of surgical face masks to reduce the incidence of the common cold among health care workers in Japan: A randomized controlled trial,” American Journal of Infection Control, Vol. 37, No. 5, pp. 417-419 (2009) at https://www.ncbi.nlm.nih.gov/pubmed/19216002 (headaches); Lazzarino AI, et al., “Covid-19: Important potential side effects of wearing face masks that we should bear in mind,” British Medical Journal, 2020;369:m2003, doi: 10.1136/bmj.m2003 (published 21 May 2020) (increased viral load).
(13) CDC staff, “Interim Guidance for Businesses and Employers Responding to Coronavirus Disease 2019 (COVID-19), May 2020,” CDC, updated May 6, 2020, at https://www.cdc.gov/coronavirus/2019-ncov/community/guidance-business-response.html.
(14) See 42 U.S.C. §12182(a) at https://www.law.cornell.edu/uscode/text/42/12182.
(15) See, e.g., California Civil Code §51(b).
(16) ADA National Network, “The Americans with Disabilities Act, Questions and Answers, ADA Nat’l Network, 2013, at https://adata.org/guide/americans-disabilities-act-questions-and-answers.
(17) Jacobs JL, et al., “Use of surgical face masks to reduce the incidence of the common cold among health care workers in Japan: A randomized controlled trial,” American Journal of Infection Control, Vol. 37, No. 5, pp. 417-419 (2009) at https://www.ncbi.nlm.nih.gov/pubmed/19216002; Cowling B, et al., “Face masks to prevent transmission of influenza virus: A systematic review,” Epidemiology and Infection, 138(4), 449-456 (2010) at https://www.cambridge.org/core/journals/epidemiology-and-infection/article/face-masks-to-prevent-transmission-of-influenza-virus-a-systematic- review/64D368496EBDE0AFCC6639CCC9D8BC05; Bin-Reza, et al., “The use of masks and respirators to prevent transmission of influenza: a systematic review of the scientific evidence,” Influenza and Other Respiratory Viruses 6(4), 257-267 (2012) at https://onlinelibrary.wiley.com/doi/epdf/10.1111/j.1750-2659.2011.00307.x; Offeddu V, et al., “Effectiveness of Masks and Respirators Against Respiratory Infections in Healthcare Workers: A Systematic Review and Meta-Analysis,” Clinical Infectious Diseases, Vol. 65, No. 11, Dec 1, 2017, pp. 1934-1942, at https://academic.oup.com/cid/article/65/11/1934/4068747; Radonovich LJ, et al., “N95 Respirators vs Medical Masks for Preventing Influenza Among Health Care Personnel: A Randomized Clinical Trial,” JAMA, 2019; 322(9): 824–83, at. https://jamanetwork.com/journals/jama/fullarticle/2749214; Long Y, et al., “Effectiveness of N95 respirators versus surgical masks against influenza: A systematic review and meta-analysis,” J Evid Based Med, 2020, pp. 1-9, at https://onlinelibrary.wiley.com/doi/epdf/10.1111/jebm.12381. See also Denis Rancourt, “Masks Don’t Work: A Review of Science Relevant to COVID-19 Social Policy, River Cities’ Reader, June 11, 2020, at https://www.rcreader.com/commentary/masks-dont-work-covid-a-review-of-science-relevant-to-covide-19-social-policy.
(18) Johns Hopkins University & Medicine Coronavirus Resource Center, “Mortality Analysis,” Johns Hopkins University, updated July 11, 2020 at https://coronavirus.jhu.edu/data/mortality.
(19) CDC, “COVIDView: A Weekly Surveillance Summary of U.S. COVID-19 Activity,” CDC, updated July 3, 2020, at https://www.cdc.gov/coronavirus/2019-ncov/covid-data/covidview/index.html.