It was the typical hot summer day in Northern California where the streets were so hot you could see the heat waves rise off the asphalt. Sometimes you could even see a mirage. My friend Joey and I had been swimming in an irrigation ditch and thought it might be nice to run to what we called the “Little Red Store.” As 8-year-olds, we didn’t pay much attention to the name of the store or really anything else. Our attentions were hyper focused on the rack of toys that the owner had just inside the door. And just next to that was the candy rack — if you had any change in your pocket at all, you could fill your Levi’s cutoffs with enough candy to rot your teeth out before you got home.
While the sidewalks were hot, we’d developed quite the set of calluses and weren’t much fazed as we sprinted the several blocks to the store. If our feet got too hot we’d run into a neighbor’s yard that happened to have a sprinkler on and we could run for another block. By the time we reached the store we were drenched. Wearing nothing but our Levi’s cutoffs, we ran through the door in search of treasure. I had just made it to the rack when I heard a crash behind me. Joey had slipped on the tiles and run into an old lady who was at the counter. They were both on the ground safe but embarrassed and upset. Joey the former and the old lady the latter.
“What are you two doing running into my store with no clothes on?” The owner yelled.
As 8-year-olds, Joey and I both knew there were two reliable responses to a question that you didn’t have a good answer for: 1. Answer “I don’t know.” It is impossible to reason with someone who doesn’t know why they do things. It stops them dead in their tracks. 2. Just stay silent. Joey chose the first response and I chose the second.
“You boys need to read the sign out front!” He marched us over to the front of his store after stopping to pick up the elderly lady who was listening to the lesson from the floor. “What does that say?” Joey and I both looked at each other and in unison said, “No shoes, no shirt, no service.” We read.
“This is my store and these are my rules if you want to shop here.” He then walked us over to another sign, slowly building his case against us. “Now what does this sign say?” He asked, cocking his head and squinting.
“We reserve the right to refuse service to anyone.” We read.
“Do you know what that means?” He asked us. He must have had children of his own because he didn’t wait for us to respond with “I don’t know.” “That means that if I don’t like your behavior, I don’t have to let you in my store.”
We nodded.
“You can come back when you’ve put a shirt and some shoes on. Maybe then you won’t slip on the floor with your wet feet.” After apologizing to the elderly woman we ran back down the street to the ditch and jumped into the water. It was months before we went back to the Little Red Store to buy candy. When we did return, the owner didn’t mention our incident. He just took the change from out wet fingers and gave us a bag of lemon drops and jolly ranchers.
A video of Shelley Lewis recently went viral that showed her attempting to enter a Gelson’s supermarket in Dana Point, California. Gavin Newsom recently announced that all Californians should be wearing masks in public to prevent the spread of Covid19. Local businesses were able to set their own policy for their clients and employees. In the video, Lewis wanted to enter Gelson’s but policy was that everyone inside the store wear a mask. But she didn’t want to wear a mask.
My 8-year-old self screamed, “No shirt, no shoes, no service!” And the image of my friend Joey flattening an elderly woman resurfaced from my memory. Just like asking shoppers to wear a mask, asking shoppers to wear shoes and a shirt might seem discriminatory to some but we all follow the rules out of respect for the business we’re patronizing. Why does it feel like a business is infringing upon your rights if they simply ask you to wear a mask as well as your shoes and your shirt? You have a Constitutional right to express yourself and dress how you choose, but you don’t have the right to walk into their store without any clothes on. Can we agree on that? And as a counterargument, I thought many Americans actually wanted businesses to be able to discriminate.
The owner of the Little Red Store would tell Lewis that if she doesn’t obey the rules of the store by wearing a mask, she could possibly infect another shopper for which the store might be subject to liability. And further, if she doesn’t obey the rules of the store, she could be asked to leave. On the subject of liability, imagine shopping in the store and getting coughed on or sneezed on by an unmasked Lewis. If you contracted COVID19, the first claim you’d make would be against the store owner for not enforcing policies that keep you safe while shopping. They have a duty to ensure a safe shopping environment for their clients and a safe work environment for their employees.
“I have a medical condition that I’m not allowed to wear a mask and I’m not required by HIPAA rules and regulations to disclose that.”
Shelley Lewis – Flat Earther and Moon Landing Skeptic
But Lewis used a scheme that is circulating on social media and one that various conservatives have championed. The trick goes something like this: Tell the store you have a disability that prohibits you from wearing a mask so that you’ll be protected under the Americans with Disabilities Act (ADA). Then if the store asks you to tell them what your disability is, (so they can attempt to accommodate said disability ) explain to them that such information is protected under HIPAA laws. Pretty ingenious. Except for the fact that it fails on the ADA front. And on the HIPAA front as well.
The ADA is a federal law that prevents employers from discriminating against applicants or others with a disability. But, it does allow employers to exclude individuals from the workplace if they pose a “direct threat” to the health or safety of themselves or other employees. A direct threat is defined as someone who poses a “substantial risk” to the health or safety of other employees in the workplace that cannot be mitigated or eliminated by reasonable accommodation.
On March 21, 2020, the EEOC declared that the COVID-19 pandemic meets the definition of a direct threat. The Equal Employment Opportunity Commission (EEOC) concluded that someone with COVID-19, or symptoms of it, presents a substantial risk to the workplace at the current time. As of the writing of this post, the U.S. has almost 2.3 million cases that have resulted in almost 121,000 deaths. And we’re not done yet. I’d say that qualifies as a substantial risk to the workplace.
Lewis might have been a direct threat to Gelson’s employees and their other clients. But the store still had an obligation to accommodate her in the best way they could. They offered to DO HER SHOPPING FOR HER. Lewis refused because she didn’t want them seeing the items she bought and she didn’t want them to have her credit card information. Yet the cashier would see the items she bought and the store would have a record of her credit card information used in the transaction.
Lewis never told the Gelson’s manager what her disability was that prohibited her from wearing a mask. Instead, she cited the Health Insurance Portability and Accountability Act of 1996 (HIPAA) and said that protected her from having to disclose her disability. But a close reading of the HIPAA Privacy Rules doesn’t help her argument. It seems that she simply didn’t do her homework before following advice she got online.
“The HIPAA Privacy Rule protects most “individually identifiable health information” held or transmitted by a covered entity or its business associate, in any form or medium, whether electronic, on paper, or oral. The Privacy Rule calls this information protected health information. “
U.S. Department of Health and Human Services
“HIPAA does not protect all health information. Nor does it apply to every person who may see or use health information. HIPAA only applies to covered entities and their business associates.”
What are covered entities?
“Covered entities are defined in the HIPAA rules as (1) health plans, (2) health care clearinghouses, and (3) health care providers who electronically transmit any health information in connection with transactions for which HHS has adopted standards.”
U.S. Department of Health and Human Services
In short, HIPAA protects individually identifiable health information. It does not apply to every person who may see or use health information. HIPAA only applies to covered entities which are: health plans, clearinghouses and health care providers. HIPAA does not apply to Gelson’s because it is a grocery store and is not a health plan, health clearinghouse or health care provider. If Lewis REALLY wanted into the store she could have simply whispered her disability into the manager’s ear and maybe the manager could have accommodated her. But faking that you have a disability does a disservice to all those that genuinely have them. Stop using a law written to protect the disabled to whine about wearing a mask.
And on that note, what disability makes it so that you cannot wear a mask? If you know of anyone who has something like this, please leave it in the comments. I’d sincerely like to know. One of my professors mentioned autism and I can totally see this being bothersome to them especially if they are hyper sensitive to texture. From what I can observe in this case, the only thing prohibiting Lewis from wearing a mask is ignorance.
Despite what Lewis found online, neither her ADA nor HIPAA arguments work. But there were many people that came to her defense. One person wrote (about mask wearing), “I’m not doing it because I woke up in a free country.” You woke up in a free country and still have to drive the speed limit. You woke up in a free country but still can’t rape people. You woke up in a free country but still can’t shop for MAGA swag in WalMart while naked.
When you are asked by the government to wear a mask it is not for your protection. It is to protect others around you. The virus spreads through droplets of water that you breathe out when you speak, cough or sneeze. Just as it’s rude to sneeze on someone without covering your mouth, in this climate it’s also rude to breathe or cough on someone without covering your mouth with a mask – in a worst case scenario it could lead to severe illness or death.
And for those that don’t want to follow the guidelines that businesses have put in place to protect their employees and other clients from you or other flat earthers, “No shirt, no shoes, no mask, no service!” If an 8-year-old can understand this, so can you.