Since April, New York state has required people to wear masks when they are outside of their own homes and cannot maintain 6 feet of distance from each other.
That rule has two exceptions: Children under 2 years old, and people who cannot “medically tolerate a face-covering” are not required to wear masks.
The first exception is clear, but the second remains open for interpretation even months after Gov. Andrew Cuomo’s executive order took effect, said Dr. Mical Raz, a professor of history and health policy at the University of Rochester.
The lack of clarity is true across the country, Raz said. “Most local ordinances that require masking note that there should be exemptions for medical conditions, but nobody actually knows what these medical conditions are,” she said.
“This is kind of punting the ball to doctors and their offices to figure out what these (exemptions) should be.”
Raz and Doron Dorfman, a law professor at Syracuse University, co-wrote a paper published this month in JAMA Health Forum in which they described an “evidence-free zone” of disabilities that warrant exemptions from mask mandates.
“There is no way to build a complete list. That is not the way the law works in America,” Dorfman said.
Leaving decisions up to doctors “preserves what we think of as individual liberties in this country, but it can leave things open for abuse.”
Raz said she has seen a concerning number of people feigning disabilities in an effort to receive exemptions to mask requirements.
“People who are doing that, first of all, you should stop. This is not good,” she said. “It’s also just incredibly disrespectful of individuals who do have disabilities, and it’s creating a culture of suspicion.”
Society in the U.S. is already suspicious toward people who claim disability benefits, whether it’s Social Security insurance, parking spots or front-of-the-line status at amusement parks, Dorfman said, and the emergence of contrived disabilities as workarounds threatens to raise skepticism of legitimate disabilities even further.
In their paper, the authors write, “Clinicians reasonably should question new and unsubstantiated claims of disability that emerge solely in the context of a contested masking requirement.”
The questioning should be “gentle but serious,” Raz said in an interview.
Granting an exemption to masking requirements to a person who does not have a legitimate need puts the public at risk, she said. “It causes real damage, and people should be aware of that.”
Despite setting out to offer clarity on what conditions should qualify a person for an exemption to a mask mandate, the authors said even they cannot provide a comprehensive list.
“It’s really a person-by-person, case-by-case situation,” said Raz. “Doctors know their patients. And if it’s a new person, doctors should take some time. Get to know them. It can be hard, but it’s important.”
Overall, she said, the number of legitimate medical reasons for forgoing a mask is small.
If a clinician does find a person medically unable to wear a mask, Raz said businesses should make accommodations to keep the person out of situations where masks would be necessary, rather than risking their health and the health of others. A public-facing employee could work from home or perform different duties during the pandemic. A store could offer curbside pickup.
The key to those measures, Raz and Dorfman said, is that the burden of making the accommodations should fall not on people with disabilities, but on businesses and institutions.
“We should certainly make sure there’s no economic burden for people” who cannot wear masks, Raz said.
The particular virus causing this pandemic is new, but the government regulations to control infectious disease -- like requiring people to wear masks in public spaces -- are not, she said.
“This is absolutely not a novel situation,” said Raz. Medical advances since the 1918 flu pandemic have lessened the need for widespread, countrywide containment measures for other infectious diseases, but the spread of the novel coronavirus in the last few months has brought masking requirements back into focus.
“People think that this is unheard of," Raz said. "They question the authority to impose this requirement, when in fact there is a significant robust public health authority to take measures to protect the public’s health.”