CAN THE GOVERNMENT MAKE ME WEAR A FACE MASK?

The Montana Governor announced a directive yesterday ordering mandatory face coverings in certain public settings in Montana.

In summary, the Governor's directive requires that all businesses, government offices, or other persons responsible for indoor spaces open to the public require and take reasonable measures to ensure that all employees, contractors, volunteers, customers, or other members of the public wear a face covering that covers their mouth and nose at all times while entering or remaining in any indoor spaces open to the public. Additionally, the directive requires businesses open to the public to post a sign at all points of entry indicating that a mask or face covering is required for ages 5 and older.

Additionally, the directive requires masks or face coverings to be worn at outdoor activities where social distancing is not possible or observed. 

Certainly there are exceptions to the mask requirement: children under the age of 5, people consuming food or drink in a public establishment, people doing strenuous exercise or swimming, people speaking to the hearing impaired, people performing in a theatrical setting when the audience is 6 feet away, people removing their mask for identification, people receiving medical treatment, and people with a medical condition precluding the safe wearing of a face covering. 

Within minutes, the strong personalities of Montana have expressed their opinions on what is "legal", "constitutional", "protected", etc.  Many are thrilled, many are angry, and many just want to know what their duties are. 

So, let's get to the issue: Is the Governor's Directive Unconstitutional? Can it be enforced? What happens if I don't wear one? What if I have a disability?

1. Is it Unconstitutional? Legal professionals from around the country have been wrestling with this question since the beginning of the COVID-19 issues, and the short answer is, likely the Courts would say it is a Constitutional directive. The United States Constitution's 10th Amendment and the United States Supreme Court Decisions over the last couple-hundred years show that the State government has the authority to control the spread of dangerous diseases within their jurisdiction. It is important to know the laws on government mandates to answer this question. While we have all heard that we are in "unprecedented" times, when it comes to government mandates, we are certainly not in an unprecedented time. In Jacobson v. Massachusetts, 197 U.S. 11, a Supreme Court case from 1905,  Mr. Jacobson challenged a mandatory smallpox vaccine, based on an unreasonable invasion of his liberties. The Supreme Court of the United States held that it was not unconstitutional for the State to order a smallpox vaccine due to the government's "police power" which allows the government to protect the health and welfare of its people." To sum this up, the United States Supreme Court ruled 115 years ago that it was ok for a government to inject people with a vaccine in a time of public crisis. Given that Supreme Court ruling, it seems as though a requirement for people to wear a mask in public places during a time of public health crisis would also be held constitutional. 
2. Enforcement: I have heard many concerns about how this directive can or will be enforced. The directive states that it can be enforced by the Attorney General, the County Attorney, DPHHS, or other local authorities under the direction of the County Attorney. The directive is enforceable only against businesses and other persons who are responsible for indoor spaces open to the public, or sponsors of organized outdoor activities as defined in the directive. Law enforcement and local public health agencies are directed to focus their enforcement of this Directive on education, providing warnings and education about the risk of transmission, while reserving the imposition of penalties and other formal enforcement for ​only the most egregious, repeated violations that put the public at risk. Remember, the Governor's directive is only Constitutional when it is used to protect the public. This directive does not allow for enforcement against individuals for not masking up or for not masking up their kids. 
3. What If I Have a Disability Preventing Me From Wearing a Mask?  Many have expressed a concern about wearing a mask or face covering due to having a disability. I have heard from many that they have a disability and they don't have to wear one, and the business can't ask them about their disability because of HIPAA. Let's all make sure we understand the laws. HIPAA (Health Insurance Portability and Accountability Act) applies to the privacy and security of certain health information and establishes national standards for the protection of health insurance information, specifically in the health care industry. This is not what is at play here. When it comes to a disability, and accommodations in a public business, the Americans with Disabilities Act (ADA) applies. Not surprisingly, the ADA and the Department of Justice have already addressed the claim that because someone has a disability, they are automatically exempt from this directive. There is no blanket exemption to people with disabilities, and the document/card floating around facebook claiming the exemption with the Deparment of Justice Seal is fraudulent (See https://www.justice.gov/opa/pr/department-justice-warns-inaccurate-flyers-and-postings-regarding-use-face-masks-and). The ADA is an anti-discrimination law, meaning that persons with disabilities should be given legal protections and accommodations. While there is no new ADA law on the issue of requiring face masks, the ADA has issued guidance to businesses to accommodate those with disabilities who are unable to wear a face covering.  There are many special provisions and policies that have been adopted under the ADA due to COVID-19. The bottom line is this: if you have a disability, the business is not required to allow you to do business as usual. Rather, the business is required to attempt a reasonable accusation for your disability. Maybe that means a less-invasive type of face covering. Maybe that means curbside pickup. But understand that the business does not have to offer a reasonable accommodation if the accommodation will be a fundamental alternation to the services offered, if it creates an undue burden to the business, or if it poses a direct threat to the health and safety of others. So, to answer the question that seems to be circulating heavily these days, "can the business ask what my disability is?" No. The Business should only ask: "Is not wearing a mask or face covering an accommodation to a disability?" And "What benefits do you receive from not wearing a mask?" The Business should then be prepared to accommodate the individual who is unable to wear a face covering. 

Here's the summary: The Governor's directive can be found here: 
https://dphhs.mt.gov/Portals/85/Documents/NewsLetters/MaskDirective.pdf.
Read it, ask yourself questions, and attempt to understand what it says. The directive may not even apply to you or your situation. If you have a question about whether or not it applies to something you are doing, ask questions. Understand the enforcement allowed under the directive is not first with policing, but rather, education. If someone in your community is providing false information, help educate them. 

I hope this information is helpful to those of you trying to sort out the new directive, as I found myself doing yesterday afternoon. If you have questions or concerns about the enforceability of this directive, feel free to ask. 

- Jill 

This blog post is for information purposes only, and does not constitute legal advice.

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