Chances are in early May 2020 you saw at least one Facebook post depicting a somewhat-official looking printable document: A viral image claiming that Americans in any state where masks had been mandated or otherwise advised in public places were specifically exempt from any such public health rule or law due to the Health Insurance Portability and Accountability Act of 1996 (HIPAA):
HIPAA Mask Exemption Meme Origin and Claims
The iteration above appeared to be the most widely circulated, and atop an icon of a masked individual with a circle and a slash over it, it read:
I am exempt from the Governor’s regulation mandating face mask usage in public. Wearing a facemask poses a health risk to me.
Under the ADA and HIPPA, I am not required to disclose my medical conditions to you.
Department of Justice ADA Violation information line: 800-514-0300
Organizations and businesses can be fined up to $75,000 for the first ADA violation and $150,000 for any subsequent violation.
TO ALL GOVERNMENT AGENTS: PLEASE PROVIDE LAWFUL AND NECESSARY CONSIDERATION TO AID THE BEARER IN THE UNIMPEDED EXERCISE OF THEIR CONSTITUTIONALLY PROTECTED RIGHTS.
Thank you for your understanding and assistance.
The version embedded above was shared by a former congressional candidate from Illinois named James Marter on May 2 2020, and the image itself was automatically scanned by meme aggregator iFunny.co the following day. It’s not clear when or in which particular state the meme originated, and others with more specific threatening language [PDF] also circulated.
An Appended Link to the CDC’s HIPAA Landing Page
Marter linked to the Centers for Disease Control (CDC)’s boilerplate HIPAA definitions page, which shed approximately no light on how the claims of the mask exemption meme were somehow related to HIPAA. That page began with a definition of HIPAA’s “Security Rule”:
Health Insurance Portability and Accountability Act of 1996 (HIPAA)
HIPAA Security Rule
The Health Insurance Portability and Accountability Act of 1996 (HIPAA) is a federal law that required the creation of national standards to protect sensitive patient health information from being disclosed without the patient’s consent or knowledge. The US Department of Health and Human Services (HHS) issued the HIPAA Privacy Rule to implement the requirements of HIPAA. The HIPAA Security Rule protects a subset of information covered by the Privacy Rule.
That portion of the page indicated that the HIPAA Security Rule required national standards in order to “protect sensitive patient health information from being disclosed without the patient’s consent or knowledge.” Although arguably the “consent” portion could be relevant, the “knowledge” portion was not.
Directly beneath that, HIPAA’s “Privacy Rule” defined the scope of the two rules:
HIPAA Privacy Rule
The Privacy Rule standards address the use and disclosure of individuals’ health information (known as “protected health information”) by entities subject to the Privacy Rule. These individuals and organizations are called “covered entities.” The Privacy Rule also contains standards for individuals’ rights to understand and control how their health information is used. A major goal of the Privacy Rule is to ensure that individuals’ health information is properly protected while allowing the flow of health information needed to provide and promote high quality health care and to protect the public’s health and well-being. The Privacy Rule strikes a balance that permits important uses of information while protecting the privacy of people who seek care and healing.
To reiterate, Marter chose that link and that link alone to substantiate his claims about HIPAA’s relevance to the patchwork of public health directives recommending or requiring the usage of face masks in public areas. The second of the two rules — the Privacy Rule — involved individuals (i.e., bearers or a printed or laminated COVID-19 HIPAA exemption pass) and “covered entities.”
So who are covered entities? According to the same page:
- Healthcare providers (self explanatory — doctors, nurses, Urgent Care centers and the like);
- Health plans (self explanatory — companies providing health insurance or coverage);
- Healthcare clearinghouses (entities handling billing, data, and other protected health information but not directly administering care);
- “Business associates: A person or organization (other than a member of a covered entity’s workforce) using or disclosing individually identifiable health information to perform or provide functions, activities, or services for a covered entity. These functions, activities, or services include claims processing, data analysis, utilization review, and billing.”
Of the four covered entities, three were clearly irrelevant on their face: Providers, plans, and billers or data handlers. None of those entities were of the sort to whom such a document might be presented. The fourth, “business associates,” still fell under people directly handling protected health information — processing of claims or review of healthcare. None of the covered entities were targeted by the HIPAA mask exemption sheet — that would presumably be retail store owners, restaurants, and other public places or spaces whose purpose and function had no relation to health.
In short, none of HIPAA’s covered entities were relevant to the claims about face mask exemptions.
Exceptions to HIPAA
Although covered entities were not restaurants, stores, malls, bowling alleys, hair salons, or other public places possibly following health and safety directives regarding masks during the COVID-19 pandemic, the portion following was still relevant to the claims.
Even if restaurants, stores, and bowling alleys were “covered entities” under HIPAA, a section titled “Permitted Uses and Disclosures” followed immediately thereafter. It explained in part:
Permitted Uses and Disclosures
A covered entity is permitted, but not required, to use and disclose protected health information, without an individual’s authorization, for the following purposes or situations:
… Public interest and benefit activities—The Privacy Rule permits use and disclosure of protected health information, without an individual’s authorization or permission, for 12 national priority purposes[.]
Those 12 exemptions were as follows:
- When required by law
- Public health activities
- Victims of abuse or neglect or domestic violence
- Health oversight activities
- Judicial and administrative proceedings
- Law enforcement
- Functions (such as identification) concerning deceased persons
- Cadaveric organ, eye, or tissue donation
- Research, under certain conditions
- To prevent or lessen a serious threat to health or safety
- Essential government functions
- Workers compensation
Five of the twelve listed conditions for HIPAA exemptions involved laws, rules, or public health in general. The site OSHA Healthcare Advisor addressed HIPAA claims and mask wearing in 2012:
Q: Our healthcare facility is requiring employees to get the flu shot or they will have to wear a mask when within 6 feet of patients. Is this not a violation of employee or patient privacy?
A. The Privacy Rule only protects the privacy of patient, not employees. Requiring non-vaccinated employees to wear a respiratory mask to protect the health of patients does not violate the patient’s privacy and may prevent the spread of infection.
Notably, some portions of HIPAA’s Privacy Rule were waived in March 2020 due to the coronavirus pandemic:
Effective March 15, 2020, for example, Secretary of the U.S. Department of Health and Human Services (HHS) Alex M. Azar (Secretary) waived certain penalties and sanctions under the HIPAA Privacy Rule against hospitals in its March 2020 COVID-19 and HIPAA Bulletin.
COVID-19 Face Mask Exemptions Under the Americans With Disabilities Act (ADA)
According to ADA.gov:
To be protected by the ADA, one must have a disability, which is defined by the ADA as a physical or mental impairment that substantially limits one or more major life activities, a person who has a history or record of such an impairment, or a person who is perceived by others as having such an impairment. The ADA does not specifically name all of the impairments that are covered.
Under any claimed or covered exemption to COVID-19 face mask orders under the ADA, an individual must have a legally recognized disability as defined by its provisions. The meme appeared to cobble together what someone believed HIPAA’s privacy mandates were along with the ADA’s accommodations, but the ADA did not entitle anyone to claim a disability they did not in fact have.
Additional, expanded detail on legally mandated requirements for the ADA had largely to do with accessibility in matters such as architecture and mobility — not skirting public health law. An example from the ADA’s most relevant portion (Title III) illustrated the actual purpose of that law:
Public accommodations must comply with basic nondiscrimination requirements that prohibit exclusion, segregation, and unequal treatment. They also must comply with specific requirements related to architectural standards for new and altered buildings; reasonable modifications to policies, practices, and procedures; effective communication with people with hearing, vision, or speech disabilities; and other access requirements. Additionally, public accommodations must remove barriers in existing buildings where it is easy to do so without much difficulty or expense, given the public accommodation’s resources.
Disabilities Precluding or Preventing Compliance with COVID-19 Face Mask Orders
We were unable to locate any example of a disability preventing the use of face masks in public or private spaces. However, business site JDSupra.com addressed claims reported by employers from employees asserting a disability (unspecified) preventing them from wearing face masks.
People reading the COVID-19 HIPAA/ADA mask exemption meme might expect the provisions of both laws meant it was as simple as claiming a disability prevented them from wearing face masks. However, that guidance explained that was not actually the case and described how such a claim might progress:
“We are requiring all employees to wear face coverings in accordance with recent CDC guidance and several employees have said they can’t wear them due to medical conditions.”
Requiring a face mask or covering is a workplace rule that can be enforced by the employer, but the requirement may need to be accommodated, just like other workplace rules, for a disabled employee. In this case, the employees should be sent home and you should begin the ADA interactive process to find out what prevents them from wearing face coverings and whether there are any accommodations that would enable them to do so. It is entirely possible that no accommodations will exist and you do not need to waive the requirement (just like you don’t have to waive other workplace rules for an individual with a disability, like those related to workplace safety), but you still need to go through the interactive process before making that determination.
If someone provides a legitimate medical reason for not wearing a face covering and you determine that there are no accommodations that would enable to employee to do so, the employee should be placed on an unpaid leave of absence until face coverings are no longer required. The same analysis should be performed for other types of temporarily required equipment or clothing, such as latex gloves. Again, this type of leave is not covered by the FFCRA and would be unpaid.
Even in the far stricter realm of employer/employee relations, claims about inability to wear a face mask during the COVID-19 pandemic did not necessarily mean the claimant was accommodated by relaxation of the rule. The employer was advised to determine why the employee might need such an accommodation; if no accommodation existed, the employee would be placed on unpaid leave “until face coverings were no longer required.”
It is not clear if the printed HIPAA/ADA mask exemption document was intended for employees to present to employers — but if that was the intent of some users, they might be surprised to learn their claim could preclude their ability to work and be paid “until face coverings are no longer required.”
The Society for Human Resource Management (SHRM) issued similar guidance, requiring further investigation of any such claim:
If an employee refuses to wear a mask that has been required by state or local order or is otherwise strongly advised by OSHA or the CDC, then the employer should first attempt to explain the requirement to the employee and convince the employee of the need to wear the mask, [attorney Todd] Logsdon said. If an employee continues to refuse the legal or safety requirement, the employer may be able to suspend the employee.
[Attorney Kathy Dudley] Helms noted that the employer needs to determine if a worker’s disability prevents him or her from wearing a mask. If so, the employer should engage in the normal interactive dialogue under the Americans with Disabilities Act, verify that the employee cannot wear a mask and state what possible accommodation would allow the employee to work.
“If the employee finds a mask uncomfortable or prefers not to wear one, that is likely insufficient and an employer can require it as a condition of employment,” she said, noting that union settings may be different, and employers should consult their collective bargaining agreement.
In short, it appeared employers were well within their rights to require employees wear masks — and, further, to suspend those who refused to comply. Even workers with a disability purportedly precluding the use of face masks were not legally guaranteed an exception (and seemed unlikely to receive one.)
States and Other Jurisdictions Requiring or Recommending Masks in Public During COVID-19
We located no centralized source for precisely which jurisdictions required masks, and the recommendations varied quite a lot — which is undoubtedly how so much disinformation is able to thrive about this very topic.
- In New Mexico on May 5 2020, a local news source reported Gov. Michelle Lujan Grisham announced “new public health measures” affecting employees of businesses and retail stores, mandating the use of face masks;
- On May 3 2020, Ohio Gov. Mike DeWine partly reversed a mandate that employees and customers in retail and restaurants wear masks;
- On May 1 2020, Massachusetts Gov. Charlie Baker issued a broad order “requiring the use of masks or face coverings in public places where [people] cannot socially distance from others … such as grocery stores, pharmacies and other retail stores”;
- On April 21 2020, Connecticut Gov. Ned Lamont “issued an executive order encouraging everyone to wear a face covering in public places where they can’t social distance”;
- On April 15 2020, New York State Gov. Andrew Cuomo issued an order mandating “masks or face coverings in public whenever social distancing was not possible” for “people who are unable to keep six feet away from others in public settings, such as on a bus or subway, on a crowded sidewalk or inside a grocery store”;
- Also on April 15 2020, Maryland Gov. Larry Hogan mandated the use of face masks in stores and on public transit in that state;
- As of April 16 2020, similar orders existed in more than a dozen states.
Similar orders or mandates existed in cities, counties, and various jurisdictions. Notably, the orders were not identical — some addressed only employees, others customers, and some affected users of public transit.
The Scope of COVID-19 Mask Mandates
Details in the above-linked news outlets demonstrated a relatively consistent patterns of the scope of COVID-19 mask orders, mandates, or other public health directives:
- They often covered retail employees or essential workers in general;
- They sometimes covered customers or patrons of retail stores and restaurants;
- In large cities, they occasionally involved public transportation (such as buses or subways);
- They were often stipulated as required when “social distancing was not possible,” or when members of the public were expected to not maintain distances of six feet or more.
No Shirt, No Shoes, No Service
If we go back to the claims of the meme and try to interpret its claims under HIPAA and the Americans with Disabilities Act (ADA), it fell apart under relatively little scrutiny. Employers were within their rights to require masks, and many states issued an array of orders requiring the use of masks in stores, restaurants, and other essential businesses.
The ADA applied only to a legally recognized disability, and employers were not required to allow employees with a legitimate disability precluding or preventing the use of a face mask to continue working for the duration of the pandemic. Moreover, under those conditions, the employee could be placed on unpaid leave.
It seemed the balance of the claims pertained to members of the public demanding entry to public places but refusing to comply with jurisdictional orders they wear masks during the COVID-19 pandemic. In short, the meme was largely aimed at putative patrons or customers of a business and their demand they be admitted or served while refusing to comply with public health orders.
Most people are familiar with “no shirt, no shoes, no service” signs, or the ability of a business (restaurants or stores) in particular to refuse service for reasons related to health, safety, or discretion:
A business can legally ban a customer not only based on its discretion, but also for health, safety, or other similar reasons, such as the customer being unruly, disrupting the business or its operations, causing injury, stress, or upset to employees, contractors, or other customers.
Business are within their rights to refuse service for a variety of reasons — so long as those reasons are not race, religion, sexual orientation, or membership in any other protected class. (It did not appear “not wanting to wear a mask” had yet become a protected class.)
COVID-19 Mask Mandate Refusal as Described in the Meme: Will It Work?
Just as discretion is a primary reason businesses maintain the right to refuse service, they also maintain the ability to not refuse entry to unmasked customers:
Lindsay Wiley, director of the Health Law and Policy Program at American University Washington College of Law, says that while [jurisdictional in Washington, D.C.] signage is mandatory, it’s essentially up to the businesses to determine how it will be enforced. While the mayor is telling individuals to wear masks, she isn’t mandating that in the order itself — such an order would be susceptible to constitutional rights challenges, according to Wiley.
It’s also not exactly clear what fines or other measures the mayor would take in cases where people or businesses fail to comply; the order gives wide latitude for enforcement. “Any individual or entity that knowingly violates this Order may be subject to civil, criminal and administrative penalties, including sanctions or penalties for violating D.C. Official Code 7-2307, including civil fines or summary suspension or revocation of licenses,” the order reads. That section of the D.C. Code gives the mayor the ability to fine entities up to $1,000 per violation and revoke, limit, or suspend licenses.
The Metropolitan Police Department said in an emailed statement that “retail food establishments may deny customers entry or ask them to leave based on a failure to wear a mask or follow other social distancing standards.” When MPD officers encounter or receive complaints about people who violate the mayor’s orders, “the goal is to obtain voluntary compliance,” the statement reads, and “members will educate the public on health and safety risks as well as the potential consequences if they do not comply.”
By the same token, it’s possible a retail or food service employee presented with a copy of the meme would be unaware it’s not really legally solid, and permit an unmasked person to enter based upon its implied claims. (But that wouldn’t mean they were accurate claims.)
COVID-19 Mask Mandate Exemption, in Summation
A viral image claiming HIPAA and the ADA exempted anyone who didn’t want to wear a mask from localized COVID-19 face mask mandates didn’t appear to be legally sound — even in the more regulated employer/employee relationship and even in the presence of a legally documented disability, individuals “unable” to wear masks might be sent home without pay for the duration of the pandemic. Businesses were within their rights to refuse entry to anyone not complying with local public health ordinances requiring masks, and even in the event a legally documented disability prevented the wearing of masks, no one was entitled to jeopardize public health due to their own disability. It was possible those who printed and presented the COVID-19 mask exemption document would be allowed entry, but we found no legal basis permitted people who didn’t want to wear masks from violating regional public health ordinances.
Update, June 25 2020
In late June 2020, a number of Facebook posts about the HIPAA and ADA “face mask exemption passes” began circulating — this time warning business owners that the referenced “FTBA” stood for “Freedom to Breathe Association”:
That post (and others like it) referenced a domain name printed on the “pass,” “ftbagency.com,” and the poster said “a real government organization the website would be .gov not .com.” Beyond that, the domain in question as of June 25 2020 was not functional and led to the following Wix.com website builder message:
Looks Like This Domain Isn’t Connected To A Website Yet!
ADA.gov Warns: ‘*COVID-19 ALERT: Fraudulent Facemask Flyers*’
An undated alert shared to ADA.gov warned Americans “not to rely on the information” presented on the social media posts and printed passes, describing them as “fraudulent”:
*COVID-19 ALERT: Fraudulent Facemask Flyers*
The Department of Justice has been made aware of postings or flyers on the internet regarding the Americans with Disabilities Act (ADA) and the use of face masks due to the COVID-19 pandemic, many of which include the Department of Justice’s seal.
These postings were not issued by the Department and are not endorsed by the Department.
The Department urges the public not to rely on the information contained in these postings and to visit ADA.gov for ADA information issued by the Department.
For more information and technical assistance about the ADA, please contact the ADA Information Line at 800-514-0301 (voice) and 800-514-0383 (TTY).
As indicated above, the Department of Justice “urge[d] the public not to rely on the information” spreading in the posts on on the ADA/HIPAA “mask exemption pass” printouts, and disavowed the use of its seal. The ADA shared the message on its own website in an attempt to defray the widely-spreading and dangerous disinformation.