Can businesses or citizens legally ask you why you aren’t masking?

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SPRINGFIELD, Mo.– Have you seen these new mask exemption signs? Sometimes taped up on a window or even a business’s front door, they encourage customers to remain mask-less if they so choose, citing federal laws and claiming it’s illegal to question someone who refuses to don a face covering. Our viewers reached out to us, sharing pictures of these signs and asking if their claims are legitimate. In short, they’re not. 

“Due to HIPAA, The Americans with Disabilities Act, and/or the Fourth and Fifth Amendment,” one of these alternative signs reads, “we cannot legally ask you about your medical condition. Therefore, if we see a customer who’s not wearing a mask, we will assume that’s the case and welcome you into our business.”

Under federal and state law, there is nothing that prohibits what one person can say about their own health. But, you know what else is totally legal? Asking someone about their health.

Below, we’ve listed what each of these cited acts and amendments ACTUALLY says about questioning someone else’s health. 

HIPAA

According to the U.S. Department of Health and Senior Services, the Health Insurance Portability and Accountability Act (HIPAA) rules apply to only covered entities and business associates.  

Based on its website, “covered entities” include: 

  • Health Care Providers (doctors, psychologists, dentists, nursing homes, and pharmacies)
  • Health Plans (like health insurance companies, HMOs, company health plans, and Medicare or Medicaid)
  • Health Care Clearinghouses, or businesses that process health care information from one entity to another

So, actually, HIPAA doesn’t say anything about a business owner (or anyone else for that matter) asking you why you aren’t wearing a mask. They can even specifically ask if you have a medical condition that would exempt from wearing one.

ADA

The Department of Justice issued a statement on June 30th clearing up confusion when it comes to the ADA, saying “The ADA does not provide a blanket exemption to people with disabilities from complying with legitimate safety requirements necessary for safe operations.”

While it is true that some with disabilities or medical conditions are exempt from masking, the question is whether the Americans with Disabilities Act makes it illegal for one individual or business to ask another individual why they are not wearing a mask.

The answer, to put it simply, is that asking someone if they have a medical exemption for masking is not a violation of law under the ADA. The ADA says discrimination on the basis of disability is a violation of law. While there are laws that limit what health information an employer can ask of an employee, it does not apply to businesses and their customers.

4TH AMENDMENT

The Fourth Amendment protects citizens from unlawful searches and seizures by the government. According to the U.S. Courts website, the key words here are “by the government.” The Fourth Amendment is not concerned with the behavior of individual citizens or business owners.

5TH AMENDMENT

According to the U.S. Courts website, The Fifth Amendment (or laws that protect citizens from self-incrimination when in police custody) only apply when it comes to criminal charges. 

Therefore, the Fifth Amendment does not apply when asking about mask-wearing. 

However, it would apply after a person was written a ticket or citation. For example, if you were cited for not wearing a mask, and were later asked why by an officer you could then “plead the Fifth.” 

Under the Fifth Amendment, a business owner or employee could not face any repercussions from asking a patron why they are not wearing a mask or if they have a medical condition that would prevent them from doing so.


In summary, the Fourth and Fifth Amendments, and Bill of Rights as a whole, protects citizens from certain governmental powers, not the behavior of other individual citizens. So where some may find it unkind or even rude, there are no laws prohibiting a person from asking or speaking about their, or someone else’s medical conditions.

Copyright 2020 Nexstar Inc. All rights reserved. This material may not be published, broadcast, rewritten, or redistributed.

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