Wearing face masks is our new normal. Whenever we cannot social distance, we are required to wear a face covering to protect against the coronavirus, COVID 19. This is mandated by Governor Cuomo’s Executive Order #202. It states “effective at 8 p.m. on Friday, April 17,2020 any individual who is over age two and able to medically tolerate a face-covering shall be required to cover their nose and mouth with a mask or cloth face-covering when in a public place and unable to maintain, or when not maintaining, social distance.”

Typically, farmers markets are an environment where social distancing is difficult with crowds of customers and the interactions between customers, farmers and vendors. That means, despite that most farmers markets are outdoors, face masks are mandatory. Subsequent amendments to the Executive Order, allow markets to refuse entry to the market for those who refuse to wear a mask. Further, farmers and vendors are allowed to refuse service to those not wearing a mask.

However, there is an exception to the mandate! That is for those who are medically unable to wear a mask. But how do we know if someone is truly medically exempt from mask wearing? The short answer is that we don’t know. We are not allowed, by law, to ask what the medical issue is, nor is the customer required to provide any explanation or documentation to prove they are exempt from wearing a mask. The law, under the Americans with Disabilities Act, is that we must accept it when a person tells us they are medically unable to comply with mask wearing.

That means, if a customer comes to the market without a mask and tells us they cannot wear a mask for medical reasons, we cannot challenge that explanation and must accept it as truth.

But, are we still required to allow them into the market without a mask? Won’t that jeopardize the health of everyone else in the market? Good questions, but the answers are not as clear. According to the ADA, we can offer an alternative shopping method as a means to help safeguard their health. For those who are legitimately unable to wear a mask and are concerned for their own health, they may agree to accept an alternative. This could be a personal shopper that will pick out their products for them and deliver them curbside to the customer. Or it could be access to shop the market online, for those markets that have that ability. This is acceptable under ADA.

However, if the customer is insistent that they be allowed to shop in the market themselves, then we have another option. A prominent Syracuse law firm, with years of ADA experience, suggests that markets maintain a stock of face shields. We can offer a face shield to the customer as it will not restrict their breathing the way a face mask may. The face shields can be retrieved when the customer exits the market. Although it is not recommended to reuse face shields, a nurse who practices in infectious diseases has said that face shields are now often reused after a thorough disinfection cleaning because of the scarcity of protective gear.

If the customer refuses both the alternative option and the face shield, then according to ADA requirements, we have no authority to keep that customer out of the market. We have to let them shop mask-less in the market.

Similarly, farmers and vendors must comply with the same conditions. They cannot question someone’s statement that they cannot wear a mask for medical reasons. Also, they cannot refuse service to someone who claims they cannot wear a mask. They must agree to sell to the person and take special care to protect themselves with as much social distancing as possible.

There are currently a couple of lawsuits working through the court system that could ultimately impact these requirements.

1. If we offer an alternative shopping experience, can we refuse market entry to a person who claims they cannot wear a mask? Until the suit makes its way through the system and a court rules on this, we do not know that we have the right to refuse their request to shop the market.

2. The Americans with Disabilities Act has a clause that says an individual with a disability may be excluded from participation in an activity if his/her participation could result in endangering public health. This is also being tested in the court system. But at this point, neither federal nor state authorities are making the declaration that allows the threat of COVID 19 infection to be a legitimate public danger that would deny ADA rights to a disabled American. So once again, until the suit makes its way through the court system and is ruled by a judge, we have no legal grounds for denying someone access to the market who claims they have a medical exemption from wearing a mask, if they insist upon entering the market to do their shopping.

Failure to comply with requirements under the Americans with Disabilities Act can result in lawsuits brought against us.

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The Farmers Market Federation of NY has consulted with a representative of the American Disabilities Act in the US Justice Department, as well as legal counsel specializing in ADA cases. The information throughout this document is based on the information obtained.

Sources of Face Shields:

Cardinal Health – 800-964-5227
Lowe’s Home Improvement
Home Depot
Office Depot
Amazon

8/3/2020