The Legality of Mandatory Mask-Wearing

June 8, 2020 Updated: June 10, 2020

Does an executive order mandating that cloth masks be worn by healthy people infringe on Constitutional rights and is it legal?

Some Americans are asking this question, as at least 14 states or cities have used their emergency powers to require masks be worn by the public when physical distancing is not able to be maintained, to reduce the spread of COVID-19, the disease caused by the CCP (Chinese Communist Party) virus. The Centers for Disease Control and Prevention (CDC) says to stay at least six feet away from other people in close quarters, while the World Health Organization (WHO) says physical distancing of at least 3.3 feet away is good enough.

According to Akin Gump Strauss Hauer & Feld LLP, a U.S. international law firm, when a state government declares a state emergency, “state governments can exercise what is known as their ‘police power’” to “make laws for the purpose of protecting the health, safety and welfare of its people.”

“In this circumstance because of the state of emergency, because there’s a potential for a pandemic and vast spread of the disease and contagion, that will perhaps permit some erosion of freedom,” Dennis E. Sawan, managing partner at Sawan & Sawan, told The Epoch Times. “The question is just how much is necessary.”

“Whenever we’re doing an analysis of the constitutional law or any enactment that violates some constitutional right, we have to first consider what right we’re talking about because not all rights are necessarily equal,” Sawan says.

According to Sawan, certain rights, such as the right to vote, to assemble, and to free speech are “textually committed in the Constitution” that it would “require a really significant justification to infringe on.” An example of this is requiring some form of identification before being able to vote as justification to prevent election fraud.

For governments to mandate mask-wearing without violating people’s rights, it has to be considered the least restrictive option available and pass the “highest level of scrutiny, and if it’s narrowly tailored to meet a compelling government interest, then it’s ok,” Sawan said.

No Mask, No Entrance

Many businesses across the country are requiring that customers wear a face covering to enter their establishment. Although businesses in New York implemented a no mask, no service policy in March, Governor Andrew Cuomo signed an additional executive order (pdf) on May 29 authorizing businesses to “deny admittance to individuals who fail to comply with the directive in Executive Order 202.17 or to require or compel their removal if they fail to adhere to such directive.”

Aaron Goldstein, a partner at Dorsey & Whitney LLP, told Business Insider, “Absent some kind of discrimination claim, the company is free to tell patrons, ‘Either wear a mask, or you’re not allowed in.’ A mask situation is like the no shirt, no shoes, no service policy we see everywhere.”

For people who are medically unable to wear a mask, many businesses are exempting them from the no-entry policy because of the American for Disabilities Act (ADA), which protects people with disabilities from discrimination, according to Business Insider. Under the ADA, businesses are also not allowed to inquire about what medical condition prevents a person from wearing a mask or ask for documentation of proof.

But that may not always be the case according to a National Law Review article. It states that “The ADA permits a retailer to deny goods or services to an individual with a disability if their presence would result in a ‘direct threat’ to the health and safety of others, but only when this threat cannot be eliminated by modifying existing policies, practices or procedures or permitting another type of accommodation.”

These businesses should offer alternative services such as curbside pickup, online shopping, or no contact delivery for these types of customers if they are denied entrance.

Businesses should clearly communicate their mask-wearing policy to avoid potential confrontation or misunderstandings with their customers. “A business can refuse service to a patron, but a true enforcement and removal from the premises would be difficult. I anticipate this is where lawsuits will be filed and state courts will have to decide where the line is drawn between the rights of a business and an individual’s personal rights,” said James Biscone, a personal injury and workers’ compensation attorney, reported Business Insider.

No Conclusive Data

Opponents of mandatory mask-wearing argue that there is currently no definitive data that supports cloth masks prevent transmission of aerosols, tiny droplets that float in the air that can spread COVID-19. Furthermore, there has not been a consensus about cloth masks within the medical community, or between the CDC and the WHO for months.

Dr. Michael Osterholm, PhD, MPH, and director of the Center for Infectious Disease Research and Policy (CIDRAP) at the University of Minnesota said in a CIDRAP podcast that, “Surgical masks, they can, in fact, have some impact in terms of transmission. But if you look at the cloth masks actually, there the aerosol will come right out.”

Osterholm says that data does not support that cloth masks stop transmission. “As the National Academy of Sciences report details, the evidence is not there to support the fact that they will have any measurable impact on this pandemic, and we have to be very careful about making assumptions about what in fact that they can do.”

A podium with the logo for the CDC
A podium with the logo for the Centers for Disease Control and Prevention at the Tom Harkin Global Communications Center in Atlanta, Ga. (Kevin C. Cox/Getty Images)

It was not until April 10 that the CDC announced the recommendation of mask-wearing in situations where people congregate, making it difficult to stay six feet apart. None of the seven studies cited by the organization discussed the effectiveness or safety of cloth masks in stopping the transmission of the CCP virus.

Furthermore, data was not provided to support the physical distancing recommendation on the CDC’s “About Cloth Face Coverings” webpage. Clicking on the “studies and evidence” link on the top of the page only takes you to the guidance for the isolation precautions page.

An email to the CDC for citation of those studies was not returned upon publication of this story.

Up until June 5, the WHO was saying that “currently no evidence that wearing a mask (whether medical or other types) by healthy persons in the wider community setting, including a universal community masking, can prevent them from infection with respiratory viruses, including COVID-19.” Masks were only suggested for those who had COVID-19 symptoms.

In its updated guideline, the organization changed its advice, saying that non-medical masks should be worn in public when a physical distancing of 3.3 feet can’t be maintained. Yet prior to its recommendation, the guideline states, “At present, there is no direct evidence (from studies on COVID19 and in healthy people in the community) on the effectiveness of universal masking of healthy people in the community to prevent infection with respiratory viruses, including COVID-19.”

While the WHO recommends the general public to wear cloth masks, it also states that hospital staff “who do not work in clinical areas do not need to use a medical mask during routine activities (e.g., administrative staff)” or a healthcare worker who is out in the community with “sporadic transmission or clusters of COVID-19 cases” do not need to wear a mask.

The WHO recommends cloth masks to have a minimum of three layers.