First, just as with our discussion of "immanence" earlier, there is not a clear ruling that an asymptomatic person would constitute a "direct threat". You and I both think they should, but that has never been legally defined or ruled on. It's not that I'm saying you're wrong, I'm just saying it's an opinion we both share, and I don't trust the rest of the world to agree with us.
In all likelihood, there isn’t going to be a new ruling on “immanence”- that ship sailed with the declaration of epidemic/pandemic in the context of this particular disease. Asymptomatic transmission of C19 is a major known disease vector- that fact won’t be lost on any judge.
Second, the hypothetical store/service/place could theoretically provide a number of auxiliary aids and services to eliminate the risk. A greater degree of distancing, providing an alternate barrier, etc. What you just quoted is exactly why the store can't simply tell a person to wear a mask or leave (without offering alternatives; if they claim they have a disability; insert qualifier here).
I think you’re misunderstanding the dynamics of what’s going on.
First, the laws of private property- the first of which is the right of exclusion- means precisely that a store can have a dress code that bars entry to those who don’t comply with it. If they make a mask part of their terms and conditions of entry, they don’t have to let you in. If you claim a disability that would grant you an exception, they STILL don’t have to let you in as long as they have other “reasonable accommodations” such as online shopping, a personal shopper to do your shopping for you, curbside service, etc. Thing is, a “reasonable accommodation” isn’t necessarily the accommodation you want.
They still don’t have to let you in.
Second, if they’re a private club- the aforementioned Sam’s and Costcos of the world- the ADA has less power over them. And they can simply revoke your membership (for any reason as long as it isn’t an illegal one or disallowed by the membership agreement).
Third, their position is further reinforced by governmental masking orders and other public health regs, which have greater legal force historically than things like the ADA.
I'm not disagreeing with you about facts on this, I'm disagreeing with the process. A store can't ask for proof of a disability. Police can't force you to give proof of a disability. A police officer won't remove someone from private property without a complaint from the store.
As previously stated, public health regulations are the ones with the greater force of law behind them. As noted in the brief Cadence linked to: “Based upon the CDC guidance, a business or government agency may require customers to wear a face mask to limit the spread of COVID-19. “
The ADA & HIPPA statutes and case law carve out “need to know” exceptions on inquiries into a person’s medical history. Since businesses are the metaphorical front line of enforcing those orders, their need to know who needs accommodation means that you can be asked if your anti-mask rationale has an underlying medical reason in order to enforce said orders. But as noted, even if you have such a reason,
they don’t have to permit you entry. In fact, in places where the masking orders are strongest, they may not legally be permitted to do so.
So, if a person refuses to wear mask but is otherwise well behaved, what happens? A store has to follow strict guidelines on what questions they're allowed to ask, offer alternatives, and then ask them to leave. If they ask the wrong questions they can get sued.
While that’s true, such a suit is unlikely to succeed under current conditions, e.g. the declaration of pandemic. Defending the suit would not be a trivial cost, but the odds of successful defense would be virtually assured, given the “need to know” exception and government orders in place. Hell, there’s even a chance a court would toss the lawsuit as frivolous.
If they believe the person is lying about a disability, they can kick them out anyway. But if that person is telling the truth, they can be sued.
Same as above.
If that person is lying, the store can be sued anyway, and the store will have to wait until the case goes to court to find out if their suspicions about lying are correct. Or, the minimum wage employee can just shrug and walk away. I think that's why you only hear about cases of people being arrested for disorderly or drunken conduct. People who refuse to wear masks but otherwise control themselves can skirt the law with near zero risk of being called out for it.
Can? Sometimes. But it’s very fact dependent.
Depends on how stores choose to enforce policy. There’s numerous videos of otherwise orderly anti-maskers being denied entry or escorted out from stores around the USA. My aunt works in a private retail club where even peaceful anti-maskers have had their memberships revoked...along with everyone else on the account.
Employer/employee relationship, not a business/customer one. Where the risks were more clearly defined and no possible safety workarounds were identified. And, since it was religious and not a disability, the ADA didn't apply.
Where the standard of duty was higher, and the claim was based on a strongly defended constitutional right. IOW, the company had to meet a higher level of justification for their denial than would a company trying to enforce a masking order based on their dress code and/or a government masking order.
