PPE Masks: Can They Make Me Wear These

Happy Friday everybody. Hope everybody out there had a great week and is looking forward to another beautiful weekend. Wanted to talk to you for a minute today about masks. They are a big topic. They’re all over the place. People hate them, people love them, people need them, people think that they’re unconstitutional. And you see kind of the gamut of opinions out there, all over social media. So I wanted to take a minute and touch on a couple of the most common points I’m seeing, and some of the misunderstandings of how the law works in this area. And let me first put out just a general disclaimer, and this is good for this conversation as well as really anything else, please stop getting your legal opinions off of somebody’s Twitter or Facebook account. For the most part, they’re not correct, they’re not accurate. They’re very rarely specific to the state that you’re living in.

It’s a terrible way to formulate an opinion on what the law is, does, or require. So if you have a question, call a lawyer. We don’t charge consultation fees, a lot of lawyers don’t charge consultation fees, just call and ask. If it’s a legitimate question about something that’s impacting you, call and ask the question. Don’t quote a Facebook post and say, “I have an understanding of the law right now.” And the irony of the fact that you probably watching Facebook right now and me telling you that, is not lost on me, but still the point remains. Face masks. There are a bunch of different counties in Texas that are handling this a different way. Some counties are making it mandatory if you’re in public, to wear them, some counties are making it voluntary.

But what I’d like to touch on is privately owned businesses, such as grocery stores, or shopping malls, or whatever, that have the sign on the front that says, “If you are not wearing a mask, we will refuse service.” I’ve seen people seem to suggest that they think, “Well, they can’t do that. They can’t make me wear a mask.” Well, the short answer is yes, they can. They’re a privately owned business, it’s a private space, that space is owned by them. They have a right to regulate what somebody must or must not wear while they’re on their property. It’s the same reason that for years we’ve seen the no shirt, no shoes, no service signs on the front of gas stations. They’re allowed to dictate for health reasons, “We require all of our clientele to be dressed in the following manner.”

There’s nothing wrong with that. If you try to go to an establishment that requires you to wear one, and they say, “Without a mask you cannot come in,” that is something that they’re allowed to do. There is nothing wrong with them to do that. So don’t get into an argument about the necessity of masks and that you have a right not to wear one. It’s simply not the case. They’re allowed to dictate that.

I’ve also seen it going around that some people are advocating, print out this little ID card that says, “I have a medical reason that wearing a mask is inappropriate for me. And if you ask me about that medical condition, I don’t have to disclose it to you because of HIPPA.” And they just say that it’d be a HIPAA violation if you ask me about my medical condition. Well, not only is that not true, because again, just like we talked about, they have a right to refuse you service for not wearing a mask, but that’s not how HIPAA works. HIPAA is a law that protects the medical information that you provide to a doctor, from being disclosed by that doctor to a third party.

A HIPAA violation would be a doctor calling one of those companies up and saying, “Hey, my patient so-and-so has this medical condition.” That’s a HIPAA violation, if you haven’t given him authorization to do that. Somebody asking you, “Well, can you please explain to me what your disability is?” That’s not for them to ask, HIPAA doesn’t even apply there. Those little ID cards that are floating around Facebook, again, those are really not even worth the paper that they’re printed on. They don’t really mean anything. It’s not a HIPAA violation. If a company asks you, that if you aren’t going to wear a mask and you’re claiming it’s for a medical reason, and they say, “Well, then you need to give us that reason or else we’re going to deny you entry,” that’s perfectly within their right to do. Now, this debate gets a lot more fuzzy when it comes to public spaces.

Some of these counties that have mandated a mask being wore in public due to some emergency mandate, or emergency order, again, you’ll see every opinion under the sun about why the governor, or the judge, or whatever, can or can’t mandate that. Again, I would caution you that the actual answer to that question is far more complex and nuanced than anybody’s going to be able to explain to you in a Facebook meme. So don’t take anything that you’re reading there as the gospel truth. If there’s a question about something, reach out, I’m happy to talk to you and give you what knowledge I have on the subject. The other thing is, we’re seeing an uptick in some of these very bizarre cases. There was a client of ours who got arrested for terroristic threat because she got into an altercation with somebody and threatened to cough on them.

I mean, that is something that if you would’ve told me two years ago, you can get charged with terroristic threat for that, I would have laughed at you, but it’s the time we’re living in. Law enforcement is taking the COVID-19 pandemic very seriously, which they should. Regardless of your thoughts on it, just keep that in mind. I know emotions run high in today’s society. And regardless of your thoughts, just know, that if you snarkly make a comment like that. It’s just like everybody knows, that if you get onto plane, don’t joke about having a bomb in your bag because things are going to end poorly for you. The same logic needs to apply here, regardless of your thoughts is, if you make a comment like that, or if you threatened to spread the pandemic around, or anything like that, heard by the wrong person, or misconstrued the wrong way, you could wind up in a bunch of trouble.

So if anything like that happens, or if you have any questions about that, again, please reach out. I’m happy to talk to you, let you know what we can do to help, to answer any questions, to put your mind at ease. But please, number one takeaway from this talk is, stop getting your legal advice from social media. Call a lawyer, ask a lawyer, and we’ll tell you what the actual answer is. All right, guys, everybody go out there. Enjoy your weekend. Hope you all have a great safe weekend and a great week next week. And I’ll see you next Friday.

Author Bio

James P. Whalen

James P. Whalen is the managing attorney and founder of Whalen Law Office, a Texas criminal defense firm offering personalized legal representation for various federal criminal charges. With a commitment to providing comfort and guidance during challenging times, Mr. Whalen serves as both an attorney and counselor to his clients, helping them navigate their cases while striving to restore normalcy to their lives.

In an inherently unbalanced criminal justice system, Mr. Whalen takes on cases with unwavering dedication. With decades of legal experience, he offers representation across various criminal charges, including white-collar crimes, violent crimes, drug charges, and more. Mr. Whalen’s numerous accolades, including Super Lawyer recognition and board certification in Criminal Appellate Law and Criminal Law, reflect his unwavering commitment to ethical and high-quality legal representation.

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