The Legal Peril of Going Without a Mask
For some Americans being asked or told to wear a mask are fighting words. There are videos aplenty on social media of displays of righteous indignation in reaction to local dictates to mask-up. Despite the US exceeding 150,000 Covid-19 deaths and 4+ million cases, at least one person who doesn’t believe any of it, posting on Facebook, “This CoronaScam is destroying lives and killing human spirit.”
In Texas, the New York Times reports the Republican party is a house divided over masking. Manny Fernandez and J. David Goodman writes, “Republican groups in eight counties censured the Republican governor after he issued a statewide mask order, saying that it infringed on their rights...”
Meanwhile, in other parts of the world, donning a mask has been de rigueur since the 1970s. “In Japan, [face masks] became a very common [preventive] practice against the flu, and in the seventies and eighties people started using them for hay fever,” Mitsutoshi Horii, a professor at Shumei University who has researched mask-wearing in Japan, told the South China Morning Post. “More recently, there was kind of a public scare about polluted air from China and people started wearing masks for that.”
Sara Zeheng wrote that mask wearing in East Asia dates back to the 1918 Spanish Flu and “has since become socially embedded as a self-protection ritual and part of people’s collective responsibility.”
One of my economics professors once told the class, “Freedom is a liability for those who can’t govern themselves,” which means this argument will be thrust into the courts. The rights infringement argument is heading towards, first, statute law, and second, possibly, into a common law brick wall.
For example, here in Nevada, the State of Nevada Cannabis Compliance Board (CCB) filed a complaint on July 21st against MM Development Company LLC, which is an integrated cannabis company selling product at its Planet 13 Superstore located just off of the Las Vegas Strip.
The state’s complaint reminds MM that all employees must wear masks and gloves and all customers must wear masks upon entering the store. “Facilities must turn away any customer refusing to wear a mask covering...”
On Saturday June 27th a video showed an employee walking through the Planet 13 showroom without a face covering at 11:34 am. Additionally, the same video, provided by MM, showed a customer talking on his cellphone maskless at 2:00 pm.
The CCB is authorized to take MM’s license for such a violation and the complaint reminds MM of the CCB’s power. Or, the CCB can impose a fine of up to $35,000 for such an offence. For this violation, the CCB will settle for $7,500.
According to cda.org:
More than 2,000 lawsuits relating to COVID-19 have been filed in federal and state courts. While most claims pertain to customers and clients who have filed for exposure to COVID-19, employees have also filed more focused claims relating to workplace health and safety, termination and nondiscrimination.
“As of mid-June, more than 230 lawsuits directly related to labor and employment violations have been filed,” according to Littler, a labor and employment litigation law firm. “California leads the nation with 32 employment lawsuits already filed.”
In the case of common law, will cases be filed against individuals who don’t wear a mask or social distance? Can a case of assault be made by someone with underlying health conditions against a person not wearing a face covering and crowding the vulnerable person?
Cornell Law School indicates “The definition of assault varies by jurisdiction, but is generally defined as intentionally putting another person in reasonable apprehension of an imminent harmful or offensive contact. Physical injury is not required. (emphasis added)
For those who are vulnerable to catching Covid-19 because of underlying health conditions, age, or race to be confronted face-to-face with a non-mask wearing and aerosol projecting individual can fairly feel the “reasonable apprehension” mentioned above. “Intentional” is what will be litigated.
No one knows who has been tested and many people don’t know they have Covid-19 and thus can be a perpetrator of such an assault without knowing it. Ignorance of the law is not a defense and ignorance of your Covid-19 condition will likely not be a defense either.
Some may say legal, schmegal, masks don’t do anything. But the College of Life Sciences at Brigham Young University makes a case that masks do make a difference and that difference may save you from losing a lawsuit.
From BYU’s executive summary:
There is now convincing evidence from multiple controlled experiments4–6 and field observations7–11 that wearing masks reduces the transmission of COVID-19 for healthcare workers and the public. Most of this evidence is COVID-19 specific and has emerged in the past few months1,7.
Masks prevent infected people from spreading the virus to others by trapping the respiratory droplets (tiny moisture particles) that are produced when we cough, speak, and breathe10,12,13. Cloth masks can stop 90% or more of the dispersal of droplets carrying the virus12,14. There is some evidence that cloth masks also protect the wearer from infection7,8, though this is less certain.
I leave the reference numbers of which there are a total of 94. The report concludes,
In the current pandemic, the consensus is growing that public masking should be used in combination with other efforts rather than not at all 1,5,9,82,89,92,93. Even the cautious and consensus-driven World Health Organization, which initially recommended against masks, now encourages their use in areas of widespread COVID-19 transmission 94, in light of new information on the disease and the results of large-scale comparative studies 91.
Enterprising attorneys can’t wait.
