According to the Syracuse University professor, immunocompromised people could seek and receive relief.
Aside from temporary judicial intervention – which recently took place in South Carolina – public colleges or universities are struggling to circumvent state bans on mask or vaccine mandates. Some K-12 school districts in Florida and Texas have challenged them under threats from their governors, though there is some uncertainty as to whether these will continue.
However, some individuals working or attending colleges could take action against these executive orders, particularly in the case of masks. For example, students and employees who are immunocompromised – or carers for them – might seek protection from their facilities under the Americans with Disabilities Act (ADA). Individuals themselves would not try to mask themselves but would ask that those they come in close contact with be masked due to the dangers of COVID-19.
Colleges and universities would likely have to grant them some form of modification, according to Doron Dorfman, a professor at Syracuse University, as those requests would meet several standards set out in Section 504 of the Rehabilitation Act of 1973 and Titles I and II of the ADA. For the faculty, this could mean an arrangement like distance learning options or masked accommodation, but students could appeal directly to federal courts if they don’t get relief.
“I think wearing a mask is a sensible precaution,” says Dorfman. “Many people are immunocompromised. You just have to assert your rights. You have to request a change from the institution. “
So why not? “Not enough people read my article,” he joked.
Dorfman is referring to the latest piece that he shared with colleague Dr. MIcal Raz, a professor at the University of Rochester, titled “Prohibitions on COVID-19 Mask Requirements vs. Journal of the American Medical Association’s Health Forum website. (Another article they wrote about masks last year got 250,000+ views). Dorfman says he first explored the masks issue from a different perspective – shelters for those unable to wear masks. But the recent turning point – with the spread of the Delta variant, rising COVID cases, mandates and bans – has sparked the thought that those who are immunocompromised and affected by the decision-making of others could ask their institutions to put on masks?
And if enough inquiries were made, could the masking have a “spillover effect” covering most areas of the campus? Probably not, but Dorfman said one person who received a modification could mean an entire class would need to be masked.
“A disabled shelter can help other people who are not disabled,” says Dorfman. “I am not saying that disability rights are the answer to overcoming this crisis. Obviously it isn’t, ”he said. “But if you don’t have another arsenal of things to use, you better use what you have. When parents get together and argue, I can easily see it. Immunocompromised students in almost any class could do it, but it takes some organization. “
Masks and law
What do the combined laws say about modifications? Dorfman breaks it down:
For students: “Section 504 of the Rehabilitation Act protects qualified people with disabilities in state-funded institutions (public schools, state universities). There is also Title II of the Americans with Disabilities Act, which protects the same population from civil discrimination in state and local government agencies. The definition of disability discrimination in both cases is the failure to make appropriate changes to policies and practices when such changes are necessary to enable people with disabilities to participate in services, programs and activities. If you don’t make changes, you could be seen as discriminating against people with disabilities. And so, immunocompromised students in public schools or public universities could bring a case under the ADA that requires a change to the mask ban policy so that they can ask other people in your classroom to wear masks. Title II, You must have a physical or mental disability yourself. It’s not like you can say he’s a child and he’s under 12 and he can’t get vaccinated. That is not enough.”
For employees: “Title I includes employees. We have the same idea that if you don’t provide the modification to the person, you will discriminate against the person. Changes for students and employees must be reasonable. What does that mean? The first part is to show that what you are asking, the modification, is reasonable at first sight. It means that the employer can actually do this. It is very doable to ask that everyone wear masks when they come into my office or class. It passes the first test. The second test is that you need to show that this is not an undue hardship. Inequitable hardship was usually viewed as a financial issue regardless of whether it placed a financial burden on the employer. With the mask mandate, there are no financial problems. Masks are ubiquitous. You can buy them easily and very cheaply. So in my opinion it is also very easy. “
For contact persons of immunocompromised persons: “They are not immune to weakness themselves, but they are the caregivers. You have a relationship or connection with them. The ADA actually protects a relationship or association with people with disabilities through a theory known as association-related discrimination. ”Dorfman, taking note of a second court ruling in 2019 (Kelleher vs. Fred A. Cook), cites an example of a professor who who cares for an immunocompromised family member. With a change approved, that professor could teach remotely or hold individual sessions or courses where he could ask students or other faculties to mask themselves in their presence. However, the professor is unlikely to be given the same accommodation in a large class setting where students are “far from them”.
Many institutions have already made arrangements for those who are immunocompromised during the pandemic, but those who haven’t should consult with legal teams to ensure they are following the correct directions. You should know how to respond to inquiries from both students and staff, as the two are very different.
Whether a grassroots movement will take place depends on whether immunocompromised people report. The extent of the impact would be determined by these requests.
“There is no guarantee that there will be one of these people in every class,” says Dorfman. “That’s the problem. It’s an individualistic approach to dealing with a public issue. It’s a patch on a much bigger problem.”
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