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Last week, Nassau County, on New York’s Long Island, became the first county in the US to ban the public wearing of masks—with very vague health exemptions—since the start of the Covid-19 pandemic. The Nassau ban follows a similarly controversial statewide mask ban in North Carolina that took effect in June.
Several concerns have been raised about Nassau’s mask ban, including that police officers—not experts in public health or medicine—are tasked with determining whether an individual is wearing a mask for valid health reasons. But another is that the pandemic is not over, and wearing medical masks while grocery shopping or even at a protest is meant to limit exposure to the disease—and some residents expect a ban to lead to harassment by local anti-maskers.
The county’s move has prompted the first class-action lawsuit against a mask ban, filed Thursday in federal district court by Disability Rights New York against Nassau County and county executive Bruce Blakeman on behalf of two anonymous residents.
“This mask ban poses a direct threat to public health and discriminates against people with disabilities,” said Timothy A. Clune, the group’s executive director, in a press release.
One of the residents, who lives with cerebral palsy and asthma, said they were stopped and questioned by other residents after the ban was passed—even before it was enacted—and, according to the complaint, now “fears that they will be arrested…because there is no standard for the police to follow to decide if they meet the health exception.”
The other resident represented in the complaint, who masks due to various immune conditions, the complaint says, is now “terrified to go into public wearing a mask.”
Both complainants say that masking has enabled them to participate in public life as disabled people during the ongoing pandemic. Disability Rights NY argues in the suit that the ban as written is unconstitutional, and violates both the Americans with Disabilities Act and Section 504 of the Rehabilitation Act, both key items of federal civil rights legislation, by denying disabled people access to their own communities.
“Local laws that abrogate or curtail rights conferred by federal law are…rendered invalid,” the complaint reads.
Given that Covid can itself disable people, Jason Cohen, a neurologist who lives in Nassau, has major concerns about how the mask ban will play out.
“I care for many patients who have brain fog from Covid and many more who are at higher risk of brain damage from Covid,” Cohen said. “Anything that discourages masking among those who want to mask is a travesty and public health disaster.”
Cohen also says that governments “should not force people to disclose their personal medical information to police in order to negotiate their way out of being accused of a crime.”
Some disabled people nevertheless have concerns about the suit itself. Ngozi, a Black disabled person who lives just over the county border in Queens, is concerned that it will end in “some type of negotiation with the state that results in keeping the law intact,” which would maintain the risk of racial profiling.
“I do not have faith in the state,” Ngozi said. “A lawsuit will not resolve the threat of mask bans anytime soon.”
Disability Rights New York is requesting a declaratory judgment that Nassau County’s mask ban violates federal law, as well as a restraining order. The complaint in its entirety can be read below.
