HVAC tech wearing mask and gloves changing an air filter

Providing Clean Air in Indoor Spaces: Moving Beyond Accommodations Towards Barrier Removal

By Jennifer Bard

One of the most persistently frustrating aspects of the Americans with Disabilities Act (ADA), as currently applied to schools and workplaces, is its emphasis on the eligibility of qualifying individuals for accommodation, rather than on population-based removal of barriers to participation.

This individualized approach has always been an uncomfortable fit, given the reality of changes in physical function throughout the lifespan, and is a particularly unsatisfying model for the collective threat of COVID-19, a novel virus that has not only caused at least a million deaths in the United States, but is likely to trigger a variety of disabling sequelae in many (perhaps most) of those who recover.

So far, however, there is mounting evidence that individuals who seek to protect themselves from infection with COVID-19 in school or in the workplace (very much including those who work in schools) are going to have to do based on their individual susceptibility to contracting COVID-19 or to being disproportionately affected by an infection.

This approach is demonstrated by the recent decision by a Virginia Court to allow school districts to maintain universal masking policies, despite state laws making mask wearing optional. The decision is good news for the 12 families involved, but not necessarily for public health. That’s because the court’s decision was merely giving them permission to request that their school require all the other children wear masks because of these children’s particular vulnerability to COVID, which spreads through the air. The judge’s ruling did not require their schools to grant the request. It is significant only because it over-rides state law that had prohibited schools from granting such an accommodation.

This case, and one in Texas that allowed vulnerable students to wear a mask themselves despite a similar statute, highlights how far interpretation of the Americans with Disabilities Act has strayed from its original population-based emphasis on inclusion, to the current focus on individual accommodation. Moreover, it has become clearer and clearer in the case of COVID that everyone is at risk of significant harm if they become infected, with the distinction that some risk factors already have been identified, while others have not. In the face of such a widely distributed risk, individual accommodations cannot, themselves, provide sufficient protection.

Therefore, as the White House recommended last week, standards for filtering indoor air in all public indoor spaces, including schools and other workplaces, are an important tool to stop the spread of COVID-19. While air filtration may not be enough to protect individuals at known high risk, who will still need to wear a mask or even work from home, it will reduce the risk for everyone else, whether they wear a mask or not.

Implementing standards that remove barriers and protect access for everyone is very much in keeping with the intent of those who worked so hard to make first the Rehabilitation Act, and then the ADA and its amendments, reality. It also reflects one of the most (although certainly not completely) successful components of the ADA: setting standards of accessibility for the built environment. While the most visible signs of these standards are curb cuts, ramps, and elevators that promote physical access, they are also present in standards for accessibility in web-based material and other forms of media. The ADA, as currently interpreted, can often make such fine distinctions between those who are and are not qualified for accommodations that it’s possible to forget its goal of creating a more inclusive society for everyone.

It is, therefore, particularly distressing that protection from infection has so quickly been accepted as a matter of individual accommodation, not of public health. Especially concerning are the early signs that schools and workplaces are about to become more dangerous, because individuals will be less able to protect themselves by masking: It now seems likely that some employers and schools may take the next step and ban individuals from wearing masks to protect themselves unless they can meet the ADA’s standard for an accommodation. These mask bans are already under consideration in some UK schools based on the evidence-free claim, often made in the U.S. as well, that teacher masking harms student learning. It’s even easier to imagine bans on masking in the wide array of jobs, in and out of the service industry, because they are a perceived to be a barrier to communication and a diminution of the customer experience. After all, a mask hides the “smiles” that are such central signs of subservience.

Though some employees and students may be able to secure permission to mask as an individual accommodation, there are sound moral, legal, and public health reasons why they should not have to this. Over time, the entire carapace constructed around gaining an accommodation under the ADA has become an often costly and humiliating ritual in which those seeking an accommodation bear the burden of first obtaining documentation of their “disability” and then begging permission from bureaucrats under pressure to reduce costs and maintain the status quo. This is true for all accommodations, but it is especially obnoxious in the case of mask wearing, because they have come to be so stigmatized that individuals who wear them in public are already finding themselves singled out for ridicule and abuse. It seems likely that, like so many other stigmas, it will also soon result in difficult-to-prove discrimination. This shouldn’t happen and is contrary to the purpose of the ADA — to promote inclusion and eliminate exclusion.

Enter: indoor air quality standards, which would reduce the risk of infection from COVID and many other airborne germs. Using filtration devices that clear COVID from the air, these standards would provide universal benefit similar to hand-rails and lighted stairwells.

Framing unclean air as a barrier in the built environment may help secure this benefit. When a person living with a disability is faced with a barrier to access so substantial and pervasive that removing it at an individual level is impossible (like a hard-to-navigate website), then the law requires covered entities to remove the barrier for everyone.

Functionally, that happens through federal standards for the built environment, but the likelihood of getting that changed quickly (if at all) is low. Therefore, I urge everyone to think about alternatives, starting with your state legislature. The ADA is a floor, not a ceiling. There is no legal barrier to states imposing higher indoor air standards as part of a plan to encourage accessible and universal design.

It is also possible for private organizations, like those that promote the use of universal design in creating more accessible buildings, to start setting higher standards for indoor air. This can be something those lucky few of us represented by unions can bargain for and those connected with the full range of accrediting entities can pursue. Accrediting agencies might also play a role in encouraging compliance. Finally, people and industries can step forward to adopt universal standards of indoor quality just as there are now universal standards for accessibility to web materials and tools.

Adopting effective indoor air standards won’t replace the need for vulnerable individuals to wear masks any more than the installation of ramps means that everyone will be able to access a building. But, at the same time, adding another layer of protection for everyone who breathes indoor air will make it safer for the vulnerable, including those may not even be aware yet of how COVID will affect them.

Jennifer S. Bard

Jennifer S. Bard is a professor of law at the University of Cincinnati College of Law where she also holds an appointment as professor in the Department of Internal Medicine at the University of Cincinnati College of Medicine. Prior to joining the University of Cincinnati, Bard was associate vice provost for academic engagement at Texas Tech University and was the Alvin R. Allison Professor of Law and director of the Health Law and JD/MD program at Texas Tech University School of Law. From 2012 to 2013, she served as associate dean for faculty research and development at Texas Tech Law.

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