The legality of wearing a mask

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Does a binding decree requiring cloth masks to be worn by healthy people infringe constitutional rights and is it legal?Some Americans ask this question because at least 14 states or cities have used their emergency powers to require masks to be worn by the public when physical distance cannot be maintained, to reduce the spread of COVID-19, the illness caused by the CCP (Chinese Communist Party) virus. The Centers for Disease Control and Prevention (CDC) say to stay at least six feet from other people in close quarters, while the World Health Organization (WHO) says the physical distance of at least 3.3 feet is sufficient.

According to Akin Gump Strauss Hauer & Feld LLP, an American international law firm, when a state government declares a state of emergency, “state governments can exercise what is called their” power to police “” to “legislate to protect the health, safety and well-being of its residents. ”

“Under these circumstances, due to the state of emergency, as there is potential for a pandemic and widespread spread of disease and contagion, which may allow some erosion of freedom,” said Dennis E. Sawan, managing partner of Sawan & Sawan. The Epoch Times. “The question is how much is needed. ”

“Whenever we analyze constitutional law or any text that violates a constitutional right, we must first consider which right we are talking about, because not all rights are necessarily equal,” says Sawan.

According to Sawan, certain rights, such as the right to vote, to assemble and to express oneself freely are “enshrined in the Constitution”, which “would require a really significant justification to infringe.” An example of this is to require some form of identification before you can vote as a justification to prevent electoral fraud.

In order for governments to impose the wearing of a mask without violating the rights of individuals, this must be considered the least restrictive option available and pass the “highest level of control, and if it is closely tailored to suit an interest imperious government, so it’s okay, “said Sawan. .

No mask, no entrance

Many businesses across the country require customers to wear face coverings to enter their establishments. Although New York companies implemented a no-mask and no-service policy in March, Governor Andrew Cuomo signed an additional executive order (pdf) on May 29 authorizing companies to “deny admission to those who disrespect not the directive contained in Executive Decree 202.17 or to require or compel their withdrawal if they do not comply with this directive. ”

Aaron Goldstein, a partner at Dorsey & Whitney LLP, told Business Insider: “In the absence of some sort of discrimination complaint, society is free to say to customers, ‘Either wear a mask or you don’t you are not authorized to do so. A mask situation is like no shirt, no shoes, no service policy that we see everywhere. ”

For people who cannot medically wear a mask, many companies exempt them from the no-entry policy because of the American for Disabilities Act (ADA), which protects people with disabilities from discrimination, according to Business Insider. Under the ADA, companies are also not allowed to inquire about medical conditions that prevent a person from wearing a mask or to request documents of proof.

But that’s not always the case, according to an article in the National Law Review. He states that “the ADA authorizes a retailer to refuse goods or services to a person with a disability if their presence poses a” direct threat “to the health and safety of others, but only when that threat cannot be eliminated by modifying existing conditions. policies, practices or procedures or allowing for another type of accommodation. ”

These companies should offer alternative services such as curbside pickup, online shopping or contactless delivery for these types of customers if they are refused entry.

Companies must clearly communicate their mask-wearing policy to avoid potential confrontation or misunderstanding with their customers. “A company can refuse to serve a customer, but real enforcement and removal from the premises would be difficult. I anticipate this is where lawsuits will be laid and where state courts will have to decide where the line is drawn between the rights of a business and the personal rights of an individual, “said James Biscone, specialist lawyer in personal injury and accidents at work, reported Business Insider. .

No conclusive data

Opponents of the mandatory use of the mask maintain that there are currently no definitive data on fabric masks preventing the transmission of aerosols, tiny droplets floating in the air that can spread COVID-19. In addition, there has been no consensus on cloth masks within the medical community or between the CDC and WHO for months.

Dr. Michael Osterholm, PhD, MPH, and director of the Center for Infectious Disease Research and Policy (CIDRAP) at the University of Minnesota said in a CIDRAP podcast that, “Surgical masks can, in fact, have an impact in terms of transmission. But if you look at the cloth masks, the aerosol will come out immediately. ”

Osterholm says the data does not support that fabric masks stop transmission. “As the National Academy of Sciences report points out, the evidence is not there to support the fact that it will have a measurable impact on this pandemic, and we must be very careful in making assumptions about what it can actually do. “

A podium with the Centers for Disease Control and Prevention logo at the Tom Harkin Global Communications Center in Atlanta, Georgia (Kevin C. Cox / Getty Images)

It was not until April 10 that the CDC announced a recommendation to wear a mask in situations where people congregate, making it difficult to stay six feet apart. None of the seven studies cited by the organization has discussed the effectiveness or safety of cloth masks in stopping the transmission of the CCP virus.

In addition, no data were provided in support of the physical distance recommendation on the CDC’s “About cloth covers” web page. By clicking on the “studies and evidence” link at the top of the page, you only access the instructions on the isolation precautions page.

An email to the CDC citing these studies was not returned when this story was published.

Until June 5, WHO stated that “there is currently no evidence that the wearing of a mask (medical or otherwise) by healthy people in a wider community setting, including community masking universal, can prevent them from being infected with respiratory viruses, including COVID-19[FEMININE»Themasksweren’tsuggestedforthosewhohadsymptomsofCOVID-19[FEMININE »Lesmasquesn’étaientsuggérésquepourceuxquiprésentaientdessymptômesdeCOVID-19

In its updated guideline, the organization changed its mind, saying that non-medical masks should be worn in public when a physical distance of 3.3 feet cannot be maintained. However, before his recommendation, the guideline states: “At present, there is no direct evidence (from studies on COVID19 and in healthy people in the community) on the effectiveness of masking universal healthy people in the community to prevent infection with respiratory viruses. , including COVID-19. ”

Although WHO recommends that the general public wear cloth masks, it also indicates that hospital staff “who do not work in clinical areas do not need to use a medical mask during routine activities (for example, for example, administrative staff) “or a health worker who is in the community with” sporadic transmission or clusters of COVID-19 cases “does not need to wear a mask.

The WHO recommends that fabric masks have at least three layers.

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