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Is it legal to require face mask use during a pandemic? Experts say yes, but here’s the catch

Experts weigh in on the legality of required face mask use

Face Mask
Face Mask (Pixabay)

As the COVID-19 pandemic continues throughout the nation, many state and local leaders are beginning to mandate the use of face masks to help curb the spread of the highly infectious virus.

Orange and Osceola County leaders are among the only in Central Florida to put an official order into effect mandating that facial coverings be worn, while other counties have opted to encourage mask use without mandating it.

While face masks are required for anyone who ventures out of their homes in Orange and Osceola counties, there is no method of enforcement or penalties should someone choose not to wear a mask.

On Monday, Orange County Mayor Jerry Demings addressed residents on his decision to require the use of face masks - an order that went into effect Saturday morning.

[RELATED: Florida coronavirus cases surpass 100,000 as positive numbers continue to swell]

Demings said that while no fine or criminal sanctions are being issued for non-compliance, he hopes that there will be more success through voluntary compliance.

“We’re going to continue to do that from mandating the wearing of masks by employees, to make a mask available for visitors, to the hand sanitizer locations, to the social distancing,” Demings said. “We’re asking everyone to help enforce (mandatory mask use). I do see that happening, where a bit of peer pressure is taking effect.”

[READ MORE: Orange County mayor reiterates face mask importance as COVID-19 cases rise, skew younger]

So that begs the question: Is it legal to require the use of a face mask in public? Can local leaders legally make you wear a face covering in public areas?

According to experts, yes - local leaders can enforce mask use, but there are a few caveats.

The American Civil Liberties Union said that mandating the use of a face mask would be much in the same vein of a restaurant being able to refuse service to a customer not following house rules.

“Our attorneys’ general take is that this is similar to businesses having ‘no shirt, no shoes, no service’ signs that many businesses have, so they don’t see an immediate legal problem,” a spokeswoman from the ACLU told News 6.

According to a report by Poynter, the challenges and dangers a pandemic brings allows governments, both locally and statewide, authorities they may not have under typical circumstances.

Private entities like restaurants or your employer may also be able to institute policies that follow similar “shape-up or ship-out” practices when it comes to mask use for the general safety of others around you.

Matt Tedeschi with the Prinz Law Firm reported that “with some exceptions, employers have always been able to institute policies as they see fit, including safety protocols. And as most states follow the at-will employment doctrine, employees can be terminated for refusing to comply with an employer’s policies—as long as those policies are not themselves illegal or hazardous,” the report read.

Tedeschi reported that there are some instances in which you could legally refuse to wear a face mask without repercussion, such as:

  • If a mask interferes with you ability to perform your job: “If wearing a mask so impedes you from performing a basic function of your job, you should bring this to your supervisor immediately,” Tedeschi wrote. “Perhaps your goggles get steamed up, impeding the precision sight needed for your work, or your team cannot hear necessary verbal commands through your mask. You should approach your employer and try to find a constructive solution together. Barring that, you can ask to be exempted from the requirement.”
  • If wearing the mask itself creates a workplace hazard or unsafe environment: “OSHA guidelines (see 29 C.F.R. 1910.134(c)(2)(i)) recognize that respirators can at times create hazards of their own. Analogously, if a face mask were to pose an occupational danger, you could refuse to wear one. You would be within your rights to decline a mask if it prevented you from seeing or smelling a hazard, or it risked getting caught in machinery or catching on fire,” Tedeschi wrote. “Mask-wearing in such a situation could itself violate OSHA safety protections, and being terminated for refusing a mask would be unlawful.”
  • If a mask makes a medical condition worse for the wearer: “The other time you could decline to wear a face mask is if a legitimate medical condition prevents you from safely doing so. If you have a pre-existing respiratory problem, such as asthma or COPD, you should be able to obtain an exemption from your employer. Non-respiratory conditions, such as medically documented claustrophobia or anxiety attacks, will present more difficulty but may also allow for an exemption,” Tedeschi wrote. “You can ask for an accommodation under the Americans with Disabilities Act or a state law, such as the Illinois Human Rights Act. It is best to provide a doctor’s note to assure your employer of the existence and severity of your condition. Your employer will have to work with you to determine whether a reasonable accommodation can be provided, as long as the exemption poses no undue hardship to the business.”

Many nay-sayers of mandatory face mask orders will claim that it is their “Constitutional right” to choose to not wear a mask, but is this valid? Experts say no.

According to a report by Poynter, the power to make and enforce rules during a pandemic comes down more so to state governors to enact policy to keep residents safe.

Poynter spoke with John Dinan, a Wake Forest University professor of politics and a leading national expert on federalism, who outlined that “state governments actually possess more power than the federal government in responding to a health crisis. State governments can issue shelter-in-place orders and close or open businesses and schools – powers that can only be exercised by state and not federal officials.”

So with this local power comes a larger responsibility for localized mitigation tactics specialized to fight disease based on the need of a specific state or community.

Along those lines, the American Bar Association explained that “under the U.S. Constitution’s 10th Amendment and U.S. Supreme Court decisions over nearly 200 years, state governments have the primary authority to control the spread of dangerous diseases within their jurisdictions. The 10th Amendment, which gives states all powers not specifically given to the federal government, allows them the authority to take public health emergency actions, such as setting quarantines and business restrictions.”

Despite constitutionality, local governments here in Central Florida have taken a more padded path to required face mask use with many foregoing any sort of real enforcement power. However, under state law, those who violate quarantine measures may face penalties.

According to the National Conference of State Legislatures, anyone in Florida who “violates quarantine rules or regulations is guilty of a second-degree misdemeanor.”

If you’ve been out and about in Orange or Osceola County without a face mask because you are unable to find one to purchase or cannot afford to purchase one, News 6 has put together a list of ways to get face masks for free and how to make them yourself.

[MORE DETAILS: How to make face masks without spending money and where to get free masks]

You do not need to wear N-95 or medical-grade masks to protect yourself and others, as face masks that will have you in compliance with orders can be made a home from items you probably already have. Click here to find out how you can make face masks at home and where to find some for free.

To keep up with the latest news on the pandemic, subscribe to News 6′s coronavirus newsletter or go to ClickOrlando.com/coronavirus.


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