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In April 2020, as major stores such as Costco started requiring customers to wear masks in order to prevent the spread of the COVID-19 coronavirus disease, a message started to circulate on social media that appeared to encourage Americans to lie about having medical conditions in order to exploit a mask loophole. The message generally read: These mask loophole posts sometimes opened with the declaration Don't want to wear a mask? Try this! and ended with What have you got to lose? They were frequently accompanied by one of two images supposedly showing flyers issued from the U.S. Department of Justice that could be presented to stores to explain that these people were exempt from these rules: However, these flyers were not issued, endorsed, or distributed by the Department of Justice, and the advice relayed in the mask loophole flyer is both legally and morally questionable. The social media post above essentially argues that able-bodied people can lie about having a medical condition in order to avoid wearing a mask in a store that requires customers to wear them. If the store presses them on the issue, they can claim that the store would be violating the federal American Disabilities Act (ADA) and the Health Insurance Portability and Accountability Act (HIPAA) by asking them about their medical conditions. This social media post doesn't relay a mask loophole so much as it encourages people to exploit a law designed to provide protections to disabled people. We reached out to several regional ADA centers for more information about the flyers. While their answers varied in length and content, they all hit on one major theme: Americans without disabilities are not protected by the Americans with Disabilities Act: A spokesperson for the Justice Department told us the department did not issue the flyers. All of the ADA centers we contacted also told us that they were unfamiliar with the flyers. The scenario depicted in this social media post (a citizen refusing to wear a mask at a grocery store) is also unrelated to HIPAA. (It's worth noting that one of these viral flyers misspelled this acronym HIPPA). The Health Insurance Portability and Accountability Act was passed in 1996 with the aim of protecting private medical records. HIPAA restricts hospitals and health care providers from sharing protected information and gives patients better access to their own records. This law has little to do with customers at a grocery store. Kathy Gips, the director of training at the New England ADA Center, told us: HIPAA does not apply to individuals (in this case, store clerks) asking a customer to wear a mask. It applies to the release of medical records from health personnel. The U.S. Department of Health and Human Services (HHS) reiterates this point on its website, explaining that HIPAA regulations apply only to covered entities, including health plans, health care providers, and health care clearinghouses. HHS writes: The HHS website also notes that HIPAA does not apply to other entities, such as law enforcement, employers, and schools. While this social media post appeared to be widely circulated by able-bodied people seeking to exploit a mask loophole, the ADA does truly protect individuals who cannot wear a mask due to medical conditions from being discriminated against. This means that stores that implement mask requirements have to find ways to accommodate individuals who cannot wear a mask. Gips explained: So what about Costco? These flyers were widely circulated in the wake of Costco's announcement that it would be temporarily requiring customers to wear masks while shopping during the COVID-19 pandemic. While these social media posts claimed that showing one of these flyers to a Costco employee would force them store to adhere to the ADA's anti-discrimination guidelines, Costco was already operating with this in mind. In fact, when Costco announced the mask requirement it noted that this new policy did not apply to children under the age of 2 or to individuals who are unable to wear a face covering due to a medical condition.
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