Could Masks Be Required In Schools Under Section 504? One Federal Judge Says The Answer May Be Yes.

Fox Rothschild LLP

Fox Rothschild LLP

Throughout the country, the debate over requiring masks in schools often focuses on whether districts or states have the power to impose such mandates. But a case from Tennessee suggests that the more important question is whether schools are legally required under disability law to mandate masks to create a safe environment for more vulnerable students.

In G.S. v. Lee, a group of parents of students with disabilities challenged the Gov. Bill Lee’s executive order that would require school districts to permit parental opt outs for any locally imposed mask mandates, essentially creating a mask-optional policy.

They brought suit under the Americans with Disabilities Act (ADA) and Section 504 claiming that the executive order is discriminatory because it had the effect of making the school unsafe for students with certain medical needs and, as a result, denied these students equal access to school. One student, the suit alleged, was forced to quarantine after contracting COVID-19 from an unmasked student.

U.S. District Judge Sheryl Lipman agreed with the parents and issued an injunction prohibiting enforcement of the executive order, thus permitting schoolwide mask mandates. In a 29-page preliminary injunction order handed down on September 17, 2021, the judge noted that, under the applicable circumstances, requiring non-disabled students to wear a mask may be a reasonable accommodation for the students with disabilities under Section 504.

The court found that the parents “offered sufficient evidence at this stage to demonstrate that the Executive Order interferes with [their children’s] ability to safely access their schools.”

While it is unclear whether the decision in this case will stand, districts should be prepared to decide what position to take if Pennsylvania’s state mask mandate is dropped and what obligations the district would have protect students who have medical conditions that make them far more suspectable to COVID-19.

In the mind of at least one federal judge, in order to meet the obligations under Section 504 or the ADA, schools may have to require masks for all as an accommodation for the disabled student.

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DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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