Q: My patient who had a lobectomy 2 years ago for a lung abscess recovered well. She mentioned feeling short of breath when required to do more strenuous activities but that she could deal with it if she rested. She never claimed to be disabled. She has a new complaint of palpitations and has an appointment to see me in the office because I do not think that I can do an adequate cardiac assessment virtually. She told my secretary that it is too hard to breathe with a mask on and that the ADA makes her exempt from our rule on having to mask in the office. We are very careful in our office practices. Patients masking is important too. Is she right that I cannot require her to do so?
Based on these facts, she probably is. The ADA defines a disability as an impairment that significantly limits one or more major life activities. The person does not need to have been previously selfdeclared or officially designated to be disabled for this to apply. The disability also does not have to apply generally. The daily life activity of breathing is, when the mask is also present, impaired by her pre-existing limitations due to the lung surgery.
The ADA, therefore, presumptively applies in this scenario so that she cannot be denied access to your office, which is a place of “public accommodation,” or to the healthcare that she needs, because she now cannot comply with the new requirement of masking. This has to be distinguished from the misconception that being disabled is an automatic masking exemption.
Is it possible that this is more about anxiety than actual dyspnea? Sure. Is that a fight you want to have, insisting that she get a pulmonary evaluation to prove her wrong, particularly since she made complaints of shortness of breath in stress situations before? No. On the other hand, you have duties to other patients, to those who visit your office for non-medical reasons, and to your employees. The extent to which you would have to accommodate her would therefore follow some analysis steps.
The ADA does not require that someone whose disability creates an irreducible significant danger to others be allowed in a public space. However, unless she has had recent exposure to COVID-19 or is symptomatic, this would not apply to her. The ADA also does not require that a business be significantly disrupted to permit an accommodation, but you are already very careful in your office practices and would not be doing more because this patient was present without a mask.
The “reasonable accommodations” you could make to counter the risk that she may present come down to preventing contact, including scheduling her when other patients are not expected and/or rooming her when she arrives. The ADA prevents stigmatizing the person with the disability, so these would have to be done naturally. Rapid testing her before she is allowed entry would be a step too far.
None of this should be confused with antimaskers flashing a “medical exemption card” that they printed off the Internet and insisting that making them mask violates the ADA. That should just be ignored, and the troublesome patient can be removed from the practice.
Dr. MedLaw, MD, JD, is a board certified radiologist and a malpractice attorney.