New Guidance Clarifies Uniform California Rule for Treatment of Disabled Customers Who Cannot Wear Face Coverings

The California Department of Public Health’s newly issued “Guidance for the Use of Face Coverings” replaces a patchwork of county and municipal standards with a statewide standard mandating face coverings in businesses and other public places.

The guidance is not an executive order and does not reference any authorizing legal authority. Despite this, Governor Gavin Newsom stated that, “Californians are now REQUIRED to wear face coverings in public spaces.” In addition, the state’s COVID-19 web page states that “[s]tarting June 18, Californians must wear face coverings in common and public indoor spaces and outdoors when distancing is not possible.”

The guidance states that “[p]eople in California must wear face coverings when they are . . . [i]nside of, or in line to enter, any indoor public space.” This will apply to nearly every kind of public-facing, indoor business.

Recognizing the applicability of Title III of the Americans with Disabilities Act (ADA), the guidance provides specific exemptions (among others) for two kinds of individuals with disabilities:

• “persons with a medical condition, mental health condition, or disability that prevents wearing a face covering”; and
• “persons who are hearing impaired, or communicating with a person who is hearing impaired, where the ability to see the mouth is essential for communication.”

Updated Practical Guidance

The new guidance largely reinforces the topics discussed in the latest episode of Ogletree Deakins’ California COVID-19 podcast series entitled “Considerations for Businesses Requiring Customer Face Coverings.” Below are a few tips on how to best strike a balance when complying with the face covering guidance and taking into account the rights of customers.

First, the new state guidance will likely override any county or municipal order that is less restrictive. Where county or municipal orders are more restrictive, businesses may want to evaluate the state guidance alongside these orders and determine the best path to comply with both.

Second, businesses will be in the safest position under the ADA where they follow the new state guidance, meaning, among other things, that they enforce the face covering requirement while acknowledging that exceptions may need to be made for customers with certain conditions that prevent them from wearing face coverings.

Third, businesses that choose to require face coverings without exemptions for medical conditions or disabilities may want to consider taking steps to establish the “direct threat” defense under the ADA, which requires a reasonable judgment based on objective medical evidence or the best evidence available. Most courts addressing the “direct threat” defense have required businesses to rely on outside medical or expert evidence.

Fourth, the guidance maintains the silence of all or nearly all of the orders to date on whether businesses can require customers claiming a disability to carry proof that they cannot wear a face covering. Because there is no clear answer in the guidance and the law about requiring documentation to receive accommodations under Title III of the ADA is still in its infancy, businesses may risk provoking customers with disabilities, or even a lawsuit, by requiring them to carry proof of their need for accommodations.

Finally, the guidance explicitly addresses the issue of hearing-impaired customers or employees who rely on lipreading to communicate. In another exception to the requirement, the guidance requires the person(s) with whom they communicate to remove their face coverings or wear transparent coverings during the period of communication.

Ogletree Deakins will continue to monitor and report on developments with respect to the COVID-19 pandemic and will post updates in the firm’s Coronavirus (COVID-19) Resource Center as additional information becomes available. Important information for employers is also available via the firm’s webinar programs.