Every morning I get a text message from my disabled grandmother’s nursing home telling me how many residents have died “COVID related deaths” since the pandemic began. As of Friday morning? Eighteen. Every night, I dread the possibility of waking the next morning to find the number has ticked even higher. Nationwide, more than 33,000 nursing home residents have been killed by COVID-19. Despite the promise of the Americans With Disabilities Act of 1990, landmark civil rights legislation designed to guarantee the rights of disabled Americans, the United States has continually failed disabled people. Where were the ADA protections for those 33,000 nursing home residents? And our government isn’t even bothering to track, in any nationwide, systematic way, the number of disabled people dying in other institutional settings, like psychiatric facilities and group homes—where are their ADA protections?
Now nondisabled scammers want you to believe that the ADA “protects” them from having to wear a face mask in public. Don’t believe them.
An outfit calling itself the “Freedom to Breathe Agency” (both its Wix website and Facebook group have now been taken down) has been distributing a “Face Mask Exempt Card” designed to be presented to businesses. The card reads: “I am exempt from any ordinance requiring face mask usage in public. Wearing a face mask poses a mental and/or physical risk to me. Under the Americans with Disability Act (ADA), I am not required to disclose my condition to you.” The card also features the seal of the U.S. Department of Justice and the threat “If found in violation of the ADA you could face steep penalties. Organizations and businesses can be fined up to $75,000 for your first violation and $150,000 for any subsequent violations.”
That might sound vaguely convincing if you aren’t familiar with the ADA. But it’s all nonsense—the Department of Justice has called the cards fraudulent. And it’s dangerous nonsense at that.
First, when we’re considering face masks, the ADA applies only to people who are actually disabled. It is absolutely true that there are people who cannot wear a face mask because they have a disability. And while there is no sort of master list of “ADA-approved” reasons for not wearing a mask, to give just a few examples, they may include people with COPD, asthma, cystic fibrosis, PTSD, and autism. These are the people the ADA is designed to protect—people who are actually disabled. The ADA does not apply to ableds lying about disability in order to spread a disease that disproportionately kills members of marginalized groups—e.g., the Black, Latinx, indigenous, poor, and, yes, disability communities.
How does the ADA protect from discrimination those who can’t wear a mask because of an actual disability? Do disabled people wave a copy of the ADA around (we aren’t normally given laminated wallet cards) and stores are just forced by law to do whatever we tell them? Hell no.
“Places of public accommodation” (like stores, cinemas, and restaurants) are required to make “reasonable modifications” to “policies, practices, or procedures to avoid discrimination.” What sort of reasonable modification might a store have to grant? Is it “let Johnny from the Freedom to Breathe Agency, who is coughing everywhere, has a fever, and has chugged from a bucket in the parking lot labeled ‘COVID-19 samples,’ walk around the store without any PPE”? Again: Hell no. Stores aren’t required to allow in any disabled individual who poses a “direct threat to the health or safety of others,” and the federal government has determined that COVID-19 is such a “direct threat.”
A disabled person could ask for a reasonable modification to a mandatory face mask policy that allows them to wear a loose face covering (like a scarf) or a face shield. Or they could ask the store to have an employee shop for them and bring their order outside. But “let me in without any sort of PPE because the ADA exempts me” is very much not a thing.
And after the disabled person asks for the reasonable modification? The place of public accommodation is allowed to ask for documentation! Disabled people know that there’s almost nothing ableds love to demand of us more than documentation. The scammers at the Freedom to Breathe Agency are technically correct that a disabled person is not required to disclose the precise “condition” that is causing them to request a reasonable modification. But the store can ask for proof that the person has a disability within the meaning of the ADA, spelling out the exact modification that is needed and explaining how that needed modification relates to the requester’s disability.
A real Freedom to Breathe Agency would join with the disability community in calling for the production and distribution of adaptive personal protective equipment to everyone who needs it—so that all of us can be as free to breathe safely as possible.
My grandmother wanted to stay at home—her own home. She didn’t want to go to a nursing home. But our lawmakers have chosen not to guarantee the kind of home care that would enable the hundreds of thousands of disabled Americans we currently warehouse in institutions to live with dignity on their own terms, in their own homes. Yet, far too often, ableds think that federal law, especially the Americans With Disabilities Act, is about special advantages for disabled people. It isn’t. The spirit of the ADA is about truly leveling the playing field, about inclusion, about access, about fairness, about equity. The promise of the ADA was never about ableds spewing SARS-CoV-2 through the aisles of their grocery store because they can’t be bothered to put a scrap of cloth over their mouth and nose—and to claim otherwise is grotesque.
For more of Slate’s news coverage, listen to What Next: TBD.