In Illinois, as universal masking is fading, the next question looms: what will the end of universal masking mean for staff and students with disabilities who are at high risk? Across the county, issues regarding universal masking have been hotly litigated. In this post, we focus on the issue of mask mandates as a reasonable accommodation for disability needs, and to date, the decisions paint a complicated picture. Districts planning or implementing mask optional plans should consider the needs of students and staff with disabilities who request continued masking of those around them to preserve their access to the district’s educational programs.

Looking at the substance of the decisions, we see different outcomes, most frequently based on whether the court finds that other accommodations could provide individuals with disabilities equal access to the district’s programs. In two federal district court cases in Pennsylvania, plaintiffs challenged their districts’ plans to stop requiring masks. In one case, the district court determined that lifting the universal masking policy would have the effect of denying students with disabilities the opportunity to participate in in-person instruction and thus stopped the district from lifting its masking requirement. In the other, the court determined that the plaintiffs had not established that universal masking was the only reasonable accommodation and so refused to stop the district from discontinuing its masking requirement. This decision, however, was stayed by the federal appellate court.

In several other cases, plaintiffs challenged state-level bans on mask mandates. In a challenge to the ban in Tennessee, the district court stopped the ban on school district mask mandates based on the failure of the defendants to identify alternative reasonable accommodations. The federal appellate court refused to pause that order while it is being appealed. In a challenge to the ban in Iowa, the district court found that a mask mandate was a reasonable accommodation and so stopped the ban. The federal appellate court narrowed the ruling to apply in schools where an individual needed such an accommodation. And in a challenge to the ban in Texas, the district court stopped the ban, but the federal appellate court paused that order based on the availability of alternative accommodations, such as social distancing and voluntary masking.

Plaintiffs arguing for masking as a reasonable accommodation under Section 504 and the Americans with Disabilities Act also face procedural hurdles. First, some federal courts have found that individual students and parents do not have standing, meaning plaintiffs have not adequately demonstrated that the ban would likely result in an injury, such as an increased risk of contracting COVID-19, or that a decision in their favor would remedy any alleged injury. Second, one federal appellate court found that plaintiffs must first exhaust their remedies under the IDEA before coming to federal court with claims related to accommodations for their disabilities that impact their access to a free and appropriate public education (FAPE).

The Seventh Circuit Court of Appeals, which has jurisdiction over Illinois, has not yet ruled on these issues. The decisions outlined above are preliminary and deal with emergency motions where the parties have not yet developed and presented all of the relevant facts. We will continue to monitor the evolving landscape of masks as accommodations for individuals who are medically fragile or immunocompromised. In the meantime, when considering a move to a mask-optional policy, factor in the specific circumstances in your community, including the needs of your students and staff who may be especially susceptible to COVID-19. Consider the multiple mitigation measures available to develop a plan that provides equal access to the district’s programs for individuals with and without disabilities.

Please reach out to any Franczek attorney with questions.