discrimination covid-19 americans-with-disabilities-act
Did &quot;stay at home&quot; signs during COVID unlawfully discriminate against people with conditions like asthma?
<p>During the COVID era, it was very common to see signs posted outside of businesses and probably public buildings, saying things like:</p>
<blockquote>
<p>Please do not come in if you are coughing, have a fever, or are short of breath.</p>
</blockquote>
<p>The problem I see is that, whether it's the exact three symptoms above, or whether it's another, similar list, these are extremely generic symptoms that are quite frequent for people with asthma or with other common, but non-contagious diseases.  For example, an adult asthmatic may be fine 95% of the time, but if they were just visiting a friend's house where several cats and dogs live, they may have a brief, minor issue with &quot;shortness of breath&quot; or &quot;wheezing&quot;.</p>
<p>And it gets worse if they have OCD and are analytical.  An individual like that might, for example, notice that their breathing is 99%, not 100%.  (Of course, most people with OCD know and are perfectly able to just ignore the sign at that point, but it can make one flinch for half a second and be slightly unwelcoming.)  So this not only affects people with common physical problems, but common psychological ones as well.</p>
<p>The bad thing is that these signs were practically everywhere during the pandemic - grocery stores certainly included - and things like the two conditions mentioned above are only example of a much larger list which affects a large swathe of the general population.  But these conditions are <em><strong>not contagious</strong></em>, and they are often genetic.  On the other hand though, they are also <em><strong>chronic</strong></em>.</p>
<p>Now, I want to highlight this: Common sense is common sense, and normally these signs would be ignored.  However, if we use the example above about the cats and dogs, the asthmatic might cough a couple of times, which would be noticeable; but in this case, it does not suggest COVID, and the problem is something that is <em><strong>chronic</strong></em>.  And while that's a temporary matter, they may be very <em>slightly</em> &quot;short of the breath&quot; all the time.</p>
<p>Despite being practically everywhere, <em>were/are these signs and rules illegally discriminating against a large swath of the population with common, chronic, and non-contagious conditions?</em></p>
<p>To the extent a specific country is required, let's use the US and regulations like the ADA, though I'd be interested to hear about other countries as well.</p>
<p><strong>UPDATE:</strong></p>
<p>The currently accepted answer (as of 2021-7-23, at which point it was the only answer) was a little hard for me to follow at first, because I believe there was some context I didn't see initially.  Without that context, the rationale and flow behind the answer didn't seem to follow logically.  In particular, when it was mentioned that people are expected to know the law, usually I think of that as mainly applying to the offender, as opposed to the victim. An offender can always still say or do something illegally though, and a victim's knowledge or ignorance of the law doesn't grant the offender a free pass to impede their rights. However with the proper context, the answer does seem to follow.</p>
<p>I could be misinterpreting something, but per a few comments back and forth, I think this is a rough paraphrase/summary, context included:</p>
<blockquote>
<p>Basically the dividing line is a matter of how clearly the alleged offender is addressing the alleged victim. In the case of a typical COVID sign, there's typically supposed to be context that the sign doesn't apply to people who just have things like asthma, unless, for example, a store employee actually addresses the individuals directly. Therefore it is not clearly and unambiguously barring them for symptoms clearly attributable to asthma (or whatever the condition is). In this way, it is similar to how a &quot;DO NOT ENTER&quot; sign at the gate of a private property does not apply to friends and family who have previously been welcomed by the owner.
<br /><br />
Also, the precise manner in which the sign is worded can weigh against this, but it doesn't single-handedly decide the case. However a &quot;Please do not enter if you are &lt;race/color/ethnicity X&gt;&quot; sign, for example, is illegal, because even in the proper context, it is still quite clear it applies to the people literally mentioned.</p>
</blockquote>

<p>You have to start with the pertinent <a href="https://www.ecfr.gov/cgi-bin/text-idx?c=ecfr&amp;SID=2ab2aab2d3d2fd0f544a5ce7aad8f04c&amp;rgn=div5&amp;view=text&amp;node=28:1.0.1.1.37&amp;idno=28" rel="noreferrer">ADA regulations</a>, 28 CFR Part 36, and esp. subpart B which gets to the prohibition. Under §36.201(a),</p>
<blockquote>
<p>No individual shall be discriminated against on the basis of
disability in the full and equal enjoyment of the goods, services,
facilities, privileges, advantages, or accommodations of any place of
public accommodation by any private entity who owns, leases (or leases
to), or operates a place of public accommodation.</p>
</blockquote>
<p>After that under activities, it is stated that</p>
<blockquote>
<p>A public accommodation shall not subject an individual or class of
individuals on the basis of a disability or disabilities of such
individual or class, directly, or through contractual, licensing, or
other arrangements, to a denial of the opportunity of the individual
or class to participate in or benefit from the goods, services,
facilities, privileges, advantages, or accommodations of a place of
public accommodation.</p>
</blockquote>
<p>and also</p>
<blockquote>
<p>A public accommodation shall not afford an individual or class of
individuals, on the basis of a disability or disabilities of such
individual or class, directly, or through contractual, licensing, or
other arrangements, with the opportunity to participate in or benefit
from a good, service, facility, privilege, advantage, or accommodation
that is not equal to that afforded to other individuals.</p>
</blockquote>
<p>moreover &quot;separate but equal&quot; is not allowed.</p>
<p>The sign does not articulate any denial of opportunity, so that should be the end of the discussion. OTOH I suspect that a sign saying &quot;Please do not enter this store if you are white&quot; would be held to be discriminatory, as an indirect denial of permission to enter based on race.</p>
<p>§36.208 introduces two important exceptions. First,</p>
<blockquote>
<p>This part does not require a public accommodation to permit an
individual to participate in or benefit from the goods, services,
facilities, privileges, advantages and accommodations of that public
accommodation when that individual poses a direct threat to the health
or safety of others.</p>
</blockquote>
<p>That means that (irrespective of the fact that covid is not a legal disability) it is legal to exclude direct threats to the health of others. And furthermore,</p>
<blockquote>
<p>In determining whether an individual poses a direct threat to the
health or safety of others, a public accommodation must make an
individualized assessment, based on reasonable judgment that relies on
current medical knowledge or on the best available objective evidence,
to ascertain: The nature, duration, and severity of the risk; the
probability that the potential injury will actually occur; and whether
reasonable modifications of policies, practices, or procedures or the
provision of auxiliary aids or services will mitigate the risk.</p>
</blockquote>
<p>Based on reasonable medical judgment and innumerable official government proclamations, it is reasonable to believe that a person with covid symptoms pose a threat to public health. The law doesn't require you to be omniscient and actually know that customer A has covid and customer B has asthma. §36.301 then says more about possible screening requirements.</p>
<p>It is generally expected that everybody knows the law and will follow the law: ignorance of the law is no excuse, nor is it a cause for a discrimination claim. It would not be legal to exclude a person from a public accommodation when they pose no threat to public health. The customer with asthma is expected to know this law, and is expected to not infer incorrectly that the sign implies that he is being illegally excluded. The customer with covid is also expected to know this law, and is expected to know that it refers to him – as is allowed under the law.</p>
<p>Potentially illegal discrimination enters the picture once actual exclusion happens, getting you back to &quot;individualized assessment, based on reasonable judgment&quot;. A rule that &quot;anybody who coughs gets thrown out&quot; is most likely to not pass muster as a reasonable health-based criterion. Including a temperature scan is likely to put the practice within the realm of the reasonable.</p>
