Orthotown October 2020 - 50

ASSESSING CLAIMED MEDICAL
EXEMPTIONS TO MASK REQUIREMENTS
Scores of viral videos have emerged online
depicting confrontations among individuals
over wearing masks. Mask requirements have
become political flashpoints, but also have
been targeted by individuals who claim that
they are precluded by a medical condition
from wearing a mask. How should a practice
manage an individual who claims to be
exempt from a mask requirement because
of a disability or other medical condition?
Title I of the ADA precludes employers
with 15 or more workers from discriminating
against employees with disabilities. If an
employee presents a covered practice with
a claimed exemption from a mask requirement, the practice must assess whether the
employee's claimed condition constitutes
a bona fide disability under the ADA and,
if it does, then engage in an interactive
dialogue with the employee to determine
whether a reasonable accommodation
is possible without posing undue risk to
the employee or others. This should be a
familiar and straightforward process for
covered practices.

When it comes to Title III of the ADA,
however, the process of managing a mask
exemption claim by a third party-a vendor
or a patient, for example-may not be as
familiar. Title III requires places of public
accommodation to remove barriers that
adversely affect persons with disabilities
from utilizing the public accommodation.
Individuals with conditions that they know
or perceive to preclude them from wearing
a face covering routinely are taking the
position that they are exempt under Title
III from having to wear a mask on-site,
regardless of whether a particular business
has implemented a mask requirement that
applies to everyone.
The Department of Justice recently
issued guidance which makes clear that the
ADA does not provide a blanket exemption
from mask requirements for individuals
with conditions that may prevent them
from wearing face coverings. If a practice
encounters a third party claiming to exercise
such an exemption, and the practice for
safety reasons does not want to allow the

The Department of Justice
recently issued guidance
which makes clear that
the ADA does not provide
a blanket exemption from
mask requirements for
individuals with conditions
that may prevent them from
wearing face coverings.
third party on-site for treatment or other
purposes without a mask, the practice likely
is within its rights to stand firm on its mask
policy in light of the current federal guidance.
Although there is no way to guarantee
that such position is risk-free, the guidance
should support a strong defense to a thirdparty claim.

LIABILITY FOR INFECTIONS ALLEGEDLY
SUSTAINED AT A PRACTICE SITE
The congressional stalemate over further
stimulus relief includes a political disagreement about whether any such package should
provide for business immunity from liability
for infections allegedly sustained at business
premises. This liability potentially can
involve both employees and third parties.
Lawsuits already have been filed in multiple
jurisdictions by infected individuals in both
of these groups, and some federal legislators
are predicting an explosion of litigation in
this area if protections for businesses are
not enacted.

50

The most fundamental measure for an
orthodontic practice to take in reducing
this risk is to develop and implement a
comprehensive written exposure prevention,
preparedness and response plan, discussed in
this article. Because most infection claims
will be based on a negligence theory, the
critical line of defense will be for the practice
to prove that it acted reasonably in preparing
for and preventing the spread of the virus at
a practice site. Further, because an infected
claimant will have to prove, in addition to
negligence, that he or she contracted the

virus at the targeted site, having a strong
plan in place will allow a practice to defend
itself by arguing that it is less likely that the
infection originated at the site, as opposed to
some other location that the claimant visited.
Finally, for infected employees in particular, practices should keep in mind that a
claimed workplace infection may constitute
an industrial injury that could be covered
exclusively by a workers' compensation
scheme. A practice should consult with its
industrial carrier if such a claim is made by
a staff member or provider. n

OCTOBER 2020 // orthotown.com

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Orthotown October 2020

Table of Contents for the Digital Edition of Orthotown October 2020
