Short of temporary court intervention—which happened recently in South Carolina—public colleges or universities have struggled to skirt around state bans on mask or vaccine mandates. A few K-12 school districts in Florida and Texas have challenged them under threats from their governors, though there is some uncertainty whether those will continue.
However, some individuals who work or attend institutions of higher education could make headway against those executive orders, especially on masks. For example, students and employees who are immunocompromised—or are caregivers for those who are—could ask their institutions for protection under the Americans with Disabilities Act (ADA). Individuals themselves would not be looking to mask themselves, but rather ask that those they come in close contact with be masked up because of the dangers of COVID-19.
Colleges and universities likely would have to grant them modifications in some form, according to Syracuse University professor Doron Dorfman, because those requests would meet several standards laid out Section 504 of the Rehabilitation Act of 1973 and Titles I and II of the ADA. For faculty, that could mean an arrangement such as remote instruction options or mask accommodations, but students could appeal directly to federal courts if they did not get relief.
“I think wearing a mask is a reasonable accommodation,” Dorfman says. “A lot of people are immunocompromised. They just need to evoke their rights. They need to request a modification from the institution.”
So why haven’t they? “Not enough people have read my article,” he joked.
Dorfman is referring to the latest piece he co-authored with colleague Dr. MIcal Raz, a professor at the University of Rochester, called “Bans on COVID-19 Mask Requirements vs Disability Accommodations: A New Conundrum” that launched Aug. 6 on the Journal of the American Medical Association’s Health Forum website. (Another article they wrote on masks last year got more than 250,000 views). Dorfman says he first started exploring the mask issue from a different perspective—accommodations for those who can’t wear masks. But the latest flip—with the delta variant circulating, COVID cases rising, mandates and bans on them—sparked the thought, could those who are immunocompromised and affected by others’ decision-making ask their institutions to have them put masks on?
And if enough requests were made, could the masking up have a “spillover effect” that covers most areas of campus? Likely not, but Dorfman said, one individual given a modification could mean an entire class would need to mask up.
“Having a disability accommodation can actually help others who are not disabled,” Dorfman says. “I’m not saying disability law is the answer to dealing with this crisis. Obviously, it’s not,” he said. “But when you don’t have other an arsenal of things you can use, you better use what you’ve got. If parents come together and fight, I can easily see this happening. Immunocompromised students in almost every class could do it, but it needs some organization.”
Masks and the law
So what do the combined laws say about modifications? Dorfman breaks it down:
For students: “Section 504 of the Rehabilitation Act protects qualified individuals with disabilities in federally funded institutions (public schools, state universities). There’s also Title II to the Americans with Disabilities Act that protects the same population from civil discrimination in state and local government entities. The definition of disability discrimination under both of those are the failure to make reasonable modifications in policies and practices where such modifications are necessary to allow people with disabilities, for participation in services, programs and activities. If you don’t make some modification, then you could be considered as discriminating against people with disabilities. And that would be how immunocompromised students in public schools or public universities could bring a case under the ADA that requires a modification to policies that bans masks, to allow them to ask other people in your classroom to wear masks.” Title II, you need to have a physical or mental impairment yourself. It’s not like, you can say, he’s a kid, and he’s under 12 and he can’t get vaccinated. That’s not enough.”
For employees: “Title I covers employees. We have the same idea that if you don’t provide the person with the modification, then you will be discriminating against the person. Modifications for students and employees need to be reasonable. So what does that mean? The first part is to show that what you’re asking, the modification, is reasonable on its face. It means that the employer can actually do it. It’s very doable to ask that everybody would wear masks when they come to my office or my class. It passes the first test. The second test is you need to show that it doesn’t create undue hardship. Undue hardship was usually looked at it as a financial issue, whether it imposed some kind of a financial burden on the employer. With the mask mandate, this is not creating any financial issues. Masks are ubiquitous. You can buy them easily and very cheaply. So in my opinion, it passes that very easily too.”
For contacts of those who are immunocompromised: “They aren’t immunocompromised themselves, but they are the caregivers. They have a relationship or association with them. The ADA actually protects a relationship or associations with people with disabilities through a theory called associational discrimination.” Dorfman, who noted a second Court decision in 2019 (Kelleher vs. Fred A. Cook), cites an example of a professor who cares for an immunocompromised family member. If a modification was granted, then that professor could teach remotely or be able to have one-on-one meetings or classes where they could ask students or other faculty to be masked in their presence. However, the professor unlikely would be granted that same accommodation in a large class setting where students “are far away from them.”
Many institutions already have made accommodations for the immunocompromised during the pandemic, but those that haven’t should consult with legal teams to ensure they are following proper guidance. They should know how to address both student and employee requests because both are very different.
Whether a grassroots movement will occur depends on immunocompromised individuals to come forward. The scope of effects would be determined by those requests.
“There’s no guarantee that every class will have one of those people in it,” Dorfman says. “That’s the problem. It’s an individualistic approach to dealing with a public issue. It’s a band-aid over a much bigger problem.”