If you've talked to anyone about masks (or gone within a mile of social media) since they became the latest thing that is going to save us all, you've heard several arguments for and against their effectiveness. To be clear from the outset, I think they are an effective tool for stopping someone with congestion who is coughing, sneezing, or having nasal discharge from spreading the disease.1 I think when they are used by the asymptomatic they do little to keep anyone from catching a disease and are a long-tail solution with minimal effectiveness.2 However, it doesn't terribly bother me when I wear one in public. If the irrationally fearful are soothed somewhat by an asymptomatic person (me) walking past them wearing a mask at a grocery store that I know probably only changes their chance of getting the disease (were I infected) from something like .00003% to something like .00001% 3 then I'm okay with giving them a little respite from the fear the media has done its level best to drum up and drive home every second of every day.
That said, let's address the argument that's now being used to support their use. (1) You have a right not to wear a mask, but (2) a business also has the right to exclude you for not wearing one. That's true as far as it goes, but leaves out the third element: (3) It's still a governmental action if the government requires the business to do it. That third step changes this from something under trespass law based on personal preferences of the business (no one wearing Steelers gear may enter this store4) to the business acting as government's enforcement arm (sin tax imposed by a State on anyone buying Steelers gear, but collected by the merchant). A day to day customer may not care about the difference; all that's really pertinent to him is that his shopping experience has had burdens placed upon it. However, understanding who is requiring the wearing of masks makes a difference in understanding how far the mandate can go.5 Your mandate comes from your State government and it's probably from your governor speaking per ipsum without the specific approval of your legislature.6 The State government can hide its individual mandates by requiring private businesses to enforce its mandate, but the mandate is still a State government mandate.
And therein lies the rub. People and businesses (1) know the federal government's laws carry more weight than the States' laws7 and they (2) know the Americans with Disabilities Act (ADA) exists. Businesses have a positive requirement under the federal law and regulations to accommodate people with disabilities. They are also not allowed to inquire as to the nature of a disability.8 For public accommodations - such as a store - a disability includes being "regarded" as having an impairment that significantly limits a life activity. 28 CFR 36.105. The federal government requires "disability" to be given a broad interpretation. 28 CFR 36.101(b).
Faced with a preemptive federal law, many businesses are not stopping anyone who enters their stores without masks. They are assuming that the unmasked person has a disability which the business is not allowed to ask the unmasked about. It's also amazing how quickly I heard people saying that if questioned they would pull out the disability card and refuse to answer what their disability is because the question is illegal to ask.9 A lot of people and businesses are applying the ADA as they understand it with an understanding that it overtops any directive the governor can dictate that businesses require people to mask.
Are they right? Can a business use this as a defense when the Virginia governor's health department brute squad comes knocking at the door?
It appears so - assuming the courts operate in a dispassionate manner, interpreting the law strictly without letting themselves be influenced by the ongoing panic or politics. On the other hand, the ADA is supposed to make businesses accommodate disabilities and 30 out of 35 customers at a store not wearing masks isn't accommodating disabilities - it's 30 people taking advantage of a loophole to avoid a dictate from the governor. It ends up being a questionable loophole provided by federal regulations against questionable dictates being mandated by governors without specific backing from their legislatures.
Do I expect to see big lawsuits about this? No. I do not. Let's be honest. On the one side you have governors who are engaging in health theater. They aren't going to start shutting down Wal-Marts and grocery stores. On the other side, the companies with enough money and resources to fight something like this in federal court are supremely uninterested in doing anything other than making money and protecting themselves against lawsuits from people with actual disabilities. Sure, were they to deny entry to a person with COPD or heart issues because they weren't wearing a mask the companies could face a lawsuit of their own, but their argument would be that that person is endangering himself by simply being at the store. And the odds of such a lawsuit getting anywhere before all this fades away are low indeed (federal courts consider snails to be speedsters).
That fact renders this a mostly intellectual exercise for lawyers. For regular persons its just another gubernatorial imposition which quiets the strident and is at best tolerated and at worst ignored by the majority. At least this time it's a relatively minor imposition.10
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1 This is the much lauded person urinating on you scenario we all heard when people were first pushing masks. No pants means the person hits you. You panted means it provides a slight barrier before soaking through. Pants on him stops the fluid from ever reaching you. The scenario is true as far as it goes, but it only makes sense if it assumes incontinence. Otherwise there is no threat of you getting wet. It works the same way for sneezing and coughing.
2 Think your governor is implementing the best available solid, rational, scientific solutions? Then ask yourself why none of them have banned air-conditioning. Viruses die in heat and humidity. COVID-19 has been proven to follow the same pattern. Human beings can survive without air conditioning making our spaces cold and dry. Some of us are old enough to remember the days before AC when we all had to make do with *gasp* fans and iced drinks to survive the Summer. If we banned AC from public accommodations and homes of anyone under 60 it would likely make a bigger dent than masks. You think any governor is going to be brave enough to do this?
3 Those numbers are WAG's folks. Anybody who tells you that they can give you accurate numbers for an uncontrolled situation such as this is full of bunkum.
4 Clearly, I am only using this as an example because some places ban sportswear because gangs have been known to wear sports clothing to indicate their affiliation, not because the Steelers are evil incarnate perhaps only surpassed in their ghastliness by the St. Louis Cardinals.
6 No, will not opine on the legality of this in each State. There are 50 States for goodness sake. I know I don't have much of a life, but even I haven't got the time to look at the constitutions and laws of all fifty States and opine on each.
8 See 29 CFR 1630.13(a) (cannot inquire about disability before offering a job), & 29 CFR 36.302(c)(6) (cannot inquire about the disability of a person entering with a service dog). Arguably the latter forbids the question entirely: "A public accommodation shall not ask about the nature or extent of a person's disability." Even if it doesn't it's a clear indicator of where the law stands.
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