Petition for Writ of Certiorari — Aaron Abadi, Petitioner v. Department of Transportation

Supreme Court briefMar 11, 2022

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No.

IN THE

Supreme Court of the United States

AARON ABADI,

Applicant,

DEPARTMENT OF TRANSPORTATION (“DOT”),

Respondent.

On petition for writ of certiorari to review a judgment on a petition for review

of agency failure to act. denied by United States Court of Appeals for the

Second Circuit.

PETITION FOR WRIT OF CERTIORARI

APPENDIX

Applicant:

Aaron Abadi (Pro se)

82 Nassau Street Apt 140

New York, NY 10038

Tel: 212-785-0370

aabadi@optonline.net

APPENDIX TABLE OF CONTENTS

Page

COURT ORDER Denying Petition & Motions.........

ACAA 14CFR§ 382......................................................

APA 5 USC Ch. 7: § 702-706 JUDICIAL REVIEW..

SUPREME COURT Clerk denies emergent motion,

CDC - Covid Reinfection is rare

DOT OACP Notice of Enforcement Policy

The ADA and Face Mask Policies

Doctor’s letter

Medical Chart

List of Airlines Discriminating.............................................

American Airlines DOT Complaint from Jan. 2019..........

Friend’s Response to Complaint from DOT........................

Unemployment Ended Sept. 5, 2021....................................

Governor of Maine’s Mask Mandate with NO Exceptions

Sampling of Airline Discriminations...................................

Email to Alex Taday of the DOT Enforcement..................

106

Case 21-2807, Document 55, 01/27/2022, 3251069, Pagel of 1

MANDATE

TRAN-1

AT2019010090

United States Court of Appeals

FOR THE

SECOND CIRCUIT

At a stated term of the United States Court of Appeals for the Second

Circuit, held at the Thurgood Marshall United States Courthouse, 40 Foley Square,

in the City ofNew York, on the 29th day of December, two thousand twenty-one.

Present:

Debra Ann Livingston,

Chieffudge,

Susan L. Carney,

Joseph F. Bianco,

Circuit Judges.

Aaron Abadi,

Petitioner.

Aaron Abadi,

Petitioner,

21-2807

Department of Transportation,

Respondent.

Petitioner, pro se, filed a petition for a writ of mandamus and moves for in forma pauperis (“IFP”)

status, and other relief. Upon due consideration, it is hereby ORDERED that the IFP motion is

GRANTED for the purpose of filing the mandamus petition. It is further ORDERED that the

other motions and the mandamus petition are DENIED because Petitioner has not demonstrated

that exceptional circumstances warrant the requested relief. See Cheney v. U.S. Dist. Court for

Dist. of Columbia, 542 U.S. 367, 380-81 (2004).

A-True Copy

Catherine O’Hagan

United States Coufi

LMjt-U.

FOR THE COURT:

Catherine O’ Hagan Wolfe, Clerk of Court

lecond Circuit

■

Cgi&uuuM

MANDATE ISSUED ON 01/27/2022

Office of the Secretary, DOT

§382.19

(1) This assurance must commit the

contractor to compliance with all ap

plicable provisions of this part in ac

tivities performed on behalf of the car

rier.

(2) The assurance must also commit

the contractor to implementing direc

tives issued by your CROs under

§§382.151 through 382.153.

include such an assurance of compli

ance in your contracts or agreements

of appointment with U.S. travel

agents. You are not required to include

such an assurance in contracts with

foreign travel agents.

(d) You remain responsible for your

contractors* compliance with this part

and for enforcing the assurances in

your contracts with them.

(e) It is not a defense against an en

forcement action by the Department

under this part that your noncompli

ance resulted from action or inaction

by a contractor.

§382.17 May carriers limit the number

of passengers with a disability on a

flight?

As a carrier, you must not limit the

number of passengers with a disability

who travel on a flight. (See also

§382.27(c)(6) of this part.)

(Docket- OST-2004-19482, 73 FR 27665. May 13,

2008, as amended at 74 FR 11471. Mar. 18. 2009]

§382.19 May carriers refuse to provide

transportation on the basis of dis

ability?

(a) As a carrier, you must not refuse

to provide transportation to a pas

senger with a disability on the basis of

his or her disability, except as specifi

cally permitted by this part.

(b) You must not refuse to provide

transportation to a passenger with a

disability because the person’s dis

ability results in appearance or invol

untary behavior that may offend,

annoy, or inconvenience crewmembers

or other passengers.

portation to any passenger on the basis

of safety, as provided in 49 U.S.C. 44902

or 14 CFR 121.533, or to any passenger

whose carriage would violate FAA or

TSA requirements or applicable re

quirements of a foreign government.

(1) You can determine that there is a

disability-related safety basis for refus

ing to provide transportation to a pas

senger with a disability if you are able

to demonstrate that the passenger

poses a direct threat (see definition in

§382.3). In determining whether an indi

vidual poses a direct threat, you must

make an individualized assessment,

based on reasonable judgment that re

lies on current medical knowledge or

on the best available objective evi

dence, to ascertain:

(1) The nature, duration, and severity

of the risk;

(ii) The probability that the poten

tial harm to the health and safety of

others will actually occur; and

(iii) Whether reasonable modifica

tions of policies, practices, or proce

dures will mitigate the risk.

(2) If you determine that the pas

senger does pose a direct threat, you

must select the least restrictive re

sponse from the point of view of the

passenger, consistent with protecting

the health and safety of others. For ex

ample, you must not refuse transpor

tation to the passenger if you can pro

tect the health and safety of others by

means short of a refusal.

(3) In exercising this authority, you

must not act inconsistently with the

provisions of this part.

(4) If your actions are inconsistent

with any of the provisions of this part,

you are subject to enforcement action

under subpart K of this part.

(d) If you refuse to provide transpor

tation to a passenger on his or her

originally-scheduled flight on a basis

relating to the individual's disability,

you must provide to the person a writ

ten statement of the reason for the re

fusal. This statement must include the

specific basis for the carrier's opinion

that the refusal meets the standards of

paragraph (c) of this section or is oth

erwise specifically permitted by this

part. You must provide this written

statement to the person within 10 cal

endar days of the refusal of transpor

tation.

417

14 CFR Ch. II (1-1-12 Edition)

§382.21

§382.21 May carriers limit access to

transportation on the basis that a

passenger has a communicable dis

ease or other medical condition?

(a) You must not do any of the fol

lowing things on the basis that a pas

senger has a communicable disease or

infection, unless you determine that

the passenger’s condition poses a direct

threat:

(1) Refuse to provide transportation

to the passenger;

(2) Delay the passenger’s transpor

tation (e.g., require the passenger to

take a later flight);

(3) Impose on the passenger any con

dition, restriction, or requirement not

imposed on other passengers; or

(4) Require the passenger to provide a

medical certificate.

(b) In assessing whether the pas

senger's condition poses a direct

threat, you must apply the provisions

of §382.19(c)(l)-(2) of this subpart.

(1) In making this assessment, you

may rely on directives issued by public

health authorities (e.g., the U.S. Cen

ters for Disease Control or Public

Health Service; comparable agencies in

other countries: the World Health Or

ganisation).

(2) In making this assessment, you

must consider the significance of the

consequences of a communicable dis

ease and the degree to which it can be

readily transmitted by casual contact

in an aircraft cabin environment.

Example 1 to paragraph (b)(2): The common

cold is readily transmissible in an aircraft

cabin environment hut does not have severe

health consequences. Someone with a cold

would not pose a direct threat.

Example 2 to paragraph (b)(2): AIDS has

very severe health consequences hut is not

readily transmissible in an aircraft cabin en

vironment. Someone would not pose a direct

threat because be or she is HIV-positive or

has AIDS.

Example 3 to paragraph (b)(2): SARS may be

readily transmissible in an aircraft cabin en

vironment and has severe health con

sequences. Someone with SARS probably

poses a direct threat.

nicable disease meeting the direct

threat criteria of this section gives you

a medical certificate of the kind out

lined in § 382.23(c)(2) describing meas

ures for preventing transmission of the

disease during the normal course of the

flight, you must provide transportation

to the passenger, unless you are unable

to carry out the measures.

(d) If your action under this section

results in the postponement of a pas

senger’s travel, you must permit the

passenger to travel at a later time (up

to 90 days from the date of the post

poned travel) at the fare that would

have applied to the passenger’s origi

nally scheduled trip without penalty

or, at the passenger’s discretion, pro

vide a refund for any unused flights, in

cluding return flights.

(e) If you take any action under this

section that restricts a passenger’s

travel, you must, on the passenger’s re

quest, provide a written explanation

within 10 days of the request.

§382.23 May carriers require a pas

senger with a disability to provide

a medical certificate?

(a) Except as provided in this section,

you must not require a passenger with

a disability to have a medical certifi

cate as a condition for being provided

transportation.

(b)(1) You may require a medical cer

tificate for a passenger with a dis

ability—

(j) Who is traveling in a stretcher or

incubator;

(ii) Who needs medical oxygen during

a flight: or

(iii) Whose medical condition is such

that there is reasonable doubt that the

individual can complete the flight safe

ly, without requiring extraordinary

medical assistance during the flight.

(2) For purposes of this paragraph, a

medical certificate is a written state

ment from the passenger's physician

saying that the passenger is capable of

completing the flight safely, without

requiring extraordinary medical assist

ance during the flight.

(3) To be valid, a medical certificate

under this paragraph must be dated

within 10 days of the scheduled date of

the passenger’s initial departing flight.

Example to paragraph (b)(3): A passenger

who schedules a flight from New York to

London on January 15 with a return on April

15 would have to show a medical certificate

dated January 5 or later. The passenger

would not have to show a second medical

certificate dated April 5 or later.

418

Office of the Secretary, DOT

§362.27

(c)(1) You may also require a medical

certificate for a passenger if he or she

has a communicable disease or condi

tion that could pose a direct threat to

the health or safety of others on the

flight.

(2) For purposes of this paragraph, a

medical certificate is a written state

ment from the passenger’s physician

saying that the disease or infection

would not, under the present condi

tions in the particular passenger’s

case, be communicable to other persons

during the normal course of a flight.

The medical certificate must state any

conditions or precautions that would

have to be observed to prevent the

transmission of the disease or infection

to other persons in the normal course

of a flight. A medical certificate under

this paragraph must be dated within 10

days of the date of the flight for which

it is presented.

(d) As a carrier, you may require that

a passenger with a medical certificate

undergo additional medical review by

you if there is a legitimate medical

reason for believing that there has

been a significant adverse change in

the passenger’s condition since the

issuance of the medical certificate or

that the certificate significantly un

derstates the passenger’s risk to the

health of other persons on the flight. If

the results of this medical review dem

onstrate that the passenger, notwith

standing the medical certificate, is

likely to be unable to complete the

flight without requiring extraordinary

medical assistance (e.g., the passenger

has apparent significant difficulty in

breathing, appears to be in substantial

pain, etc.) or would pose a direct threat

to the health or safety of other persons

on the flight, you may take an action

otherwise prohibited under § 382.21(a) of

this part.

(Docket OST-2004-19482, 73 FR 27665. May 13.

2008, as amended at 75 FR 44887, July 30. 2010]

§382.25 May a carrier require a pas

senger with a disability to provide

advance notice that he or she is

traveling on a flight?

As a carrier, you must not require a

passenger with a disability to provide

advance notice of the fact that he or

she is traveling on a flight.

§ 382.27 May a carrier require a pas

senger with a disability to provide

advance notice in order to obtain

certain specific services in connec

tion with a flight?

(a) Except as provided in paragraph

(b) of this section and §§ 382.133(c)(4)

and (5) and 382.133 (d)(5) and (6), as a

carrier you must not require a pas

senger with a disability to provide ad

vance notice in order to obtain services

or accommodations required by this

Part.

(b) You may require a passenger with

a disability to provide up to 72 hours'

advance notice and check in one hour

before the check-in time for the gen

eral public to receive carrier-supplied

in-flight medical oxygen on inter

national flights. 48 hours' advance no

tice and check-in one hour before the

check-in time for the general public to

receive carrier-supplied in-flight med

ical oxygen on domestic flights, and 48

hours’ advance notice and check-in one

hour before the check-in time for the

general public to use his-her ventilator.,

respirator, CPAP machine or POC.

(cl You may require a passenger with

a disability to provide up to 48 hours’'

advance notice and check in one hour

before the check-in time for the gen

eral public to receive the following

services and accommodations. The

services listed in paragraphs (c)(1)

through (c)(3) of this section are op

tional; you are not required to provide

them, but you may choose to do so.

(1) Carriage of an incubator;

(2) Hook-up for a respirator, venti

lator, CPAP machine or POC to the

aircraft electrical power supply:

(3) Accommodation for a passenger

who must travel in a stretcher;

(4) Transportation for an electric

wheelchair on an aircraft with fewer

than 60 seats;

(5) Provision of hazardous materials

packaging for batteries or other assist

ive devices that are required to have

such packaging;

(6) Accommodation for a group of ten

or more qualified individuals with a

disability, who make reservations and

travel as a group; and

(7) Provision of an on-board wheel

chair on an aircraft with more than 60

seats that does not have an accessible

lavatory.

419

14 CFR Ch. II (1-1-12 Edition)

§382.29

tion of being provided air transpor

tation.

(b) You may require a passenger with

a disability in one of the following cat

egories to travel with a safety assist

ant as a condition of being provided air

transportation, if you determine that a

safety assistant is essential for safety:

(1) A passenger traveling in a stretch

er or incubator. The safety assistant

for such a person must be capable of at

tending to the passenger’s in-flight

medical needs;

(2) A passenger who, because of a

mental disability, is unable to com

prehend or respond appropriately to

safety instructions from carrier per

sonnel, including the safety briefing re

quired by 14 CFR 121.571(a)(3) and (a)(4)

or 14 CFR 135.117(b) or the safety regu

lations of a foreign carrier’s govern

ment, as applicable;

(3) A passenger with a mobility im

pairment so severe that the person is

unable to physically assist in his or her

own evacuation of the aircraft:

(4) A passenger who has both severe

hearing and severe vision impairments,

if the passenger cannot establish some

means of communication with carrier

personnel that is adequate both to per

mit transmission of the safety briefing

required by 14 CFR 121.57(a)(3) and

(a)(4). 14 CFR 135,117(b) or the safety

regulations of a foreign carrier's gov

ernment;. as applicable, and to enable

the passenger to assist in his or her

own evacuation of the aircraft in the

event of an emergency. You may re

quire a. passenger with severe hearing

and vision impairment who wishes to

travel without a safety assistant to no

tify you at least 48 hours in advance to

provide this explanation. If the pas

senger fails to meet this notice re

quirement, however, you must still ac

commodate him or her to the extent

practicable.

(c)(1) If you determine that a person

meeting the criteria of paragraph

(b)(2), (b)(3) or (b)(4) of this section

must travel with a safety assistant,

§382.29 May a carrier require a pas contrary to the individual's self-assess

senger with a disability to travel ment that he or she is capable of trav

with a safety assistant?

eling independently, you must not

(a) Except as provided in paragraph charge for the transportation of the

(b) of this section, you must not re safety assistant. You are not required

quire that a passenger with a disability to find or provide the safety assistant,

travel with another person as a condi- however.

(8) Transportation of an emotional

support or psychiatric service animal

in the cabin;

(9) Transportation of a service ani

mal on a flight segment scheduled to

take 8 hours or more;

(10) Accommodation of a passenger

who has both severe vision and hearing

impairments (see §382.29(b)(4)).

(d) If the passenger with a disability

provides the advance notice you re

quire, consistent with this section, for

a service that you must provide (see

paragraphs (c)(4) through (c)(10) of this

section) or choose to provide (see para

graphs (c)(1) through (c)(3) of this sec

tion), you must provide the requested

service or accommodation.

(e) Your reservation and other ad

ministrative systems must ensure that

when passengers provide the advance

notice that you require, consistent

with this section, for services and ac

commodations, the notice is commu

nicated, clearly and on time, to the

people responsible for providing the re

quested service or accommodation.

(f) If a passenger with a disability

provides the advance notice you re

quire. consistent with this section, and

the passenger is forced to change to an

other flight {e.g.. because of a flight

cancellation), you must, to the max

imum extent feasible, provide the ac

commodation on the new flight. If the

new flight is another carrier's flight,

you must provide the maximum fea

sible assistance to the other carrier in

providing the accommodation the pas

senger requested from you.

(g) If a passenger does not meet ad

vance notice or check-in requirements

you establish consistent with this sec

tion, you must still provide the service

or accommodation if you can do so by

making reasonable efforts, without de

laying the flight.

[Docket OST-2004-19482, 73 FR 27665, May 13.

2008, as amended at 74 FR 11471, Mar. 18, 2009;

75 FR 44887, July 30, 2010]

420

§362.33

Office of the Secretary, DOT

(2) For purposes of paragraph (b)(4) of

this section, you may require, contrary

to the individual’s self-assessment,

that an individual with both severe

hearing and vision impairments must

travel with a safety assistant if you de

termine that—

(i) The means of communication that

the individual has explained to you

does not adequately satisfy the objec

tives identified in paragraph (b)(4) of

this section; or

(ii) The individual proposes to estab

lish communication by means of finger

spelling and you cannot, within the

time following the individual’s notifi

cation, arrange for a flight crew mem

ber who can communicate using this

method to serve the passenger's flight.

(3) If a passenger voluntarily chooses

to travel with a personal care attend

ant or safety assistant that you do not

require, you may charge for the trans

portation of that person.

(d) If. because there is not a seat

available on a flight for a safety assist

ant whom the carrier has determined

to be necessary, a passenger with a dis

ability holding a confirmed reservation

is unable to travel on the flight, you

must compensate the passenger with a

disability in an amount to be cal

culated as provided for instances of in

voluntary denied boarding under 14

CFR part 250. where part 250 applies.

(e) For purposes of determining

whether a seat is available for a safety

assistant, you must deem the safety as

sistant to have checked in at the same

time as the passenger with a disability.

(f) Concern that a passenger with a

disability may need personal care serv

ices (e.g.. assistance in using lavatory

facilities or with eating) is not a basis

for requiring the passenger to travel

with a safety assistant. You must ex

plain this clearly in training or infor

mation you provide to your employees.

You may advise passengers that your

personnel are not required to provide

such services.

§ 382.31 May carriers impose special

charges on passengers with a dis

ability for providing services and

accommodations required by this

rule?

(a) Except as otherwise provided in

this part you must not, as a carrier,

impose charges for providing facilities,

equipment, or services that this rule

requires to be provided to passengers

with a disability. You may charge for

services that this part does not require.

(b) You may charge a passenger for

the use of more than one seat if the

passenger’s size or condition (e.g., use

of a stretcher) causes him or her to oc

cupy the space of more than one seat.

This is not considered a special charge

under this section.

use to make reservations or purchase

tickets is not accessible to a passenger

with a disability, you must not charge

a fee to the passenger who is con

sequently unable to make a reservation

or purchase a ticket on that site for

using another booking method (e.g.,

making a reservation by phone). If a

discount is made available to a pas

senger who books a flight using an in

accessible web site, you must make

that discount available to a passenger

with a disability who cannot use the

web site and who purchases a ticket

from you using another method.

§382.33 May carriers impose other re

strictions on passengers with a dis

ability that they do not impose on

other passengers?

(a) As a carrier, you must not subject

passengers with a. disability to restric

tions that do not apply to other pas

sengers. except as otherwise permitted

in this part (e.g., advance notice re

quirements for certain services per

mitted by §382.27).

(b) Restrictions you must not impose

on passengers with a disability include,

but are not limited to, the following:

(1) Restricting passengers” move

ment within the terminal:

(2) Requiring passengers to remain in

a holding area or other location in

order to receive transportation, serv

ices, or accommodations;

(3) Making passengers sit on blankets

on the aircraft;

(4) Making passengers wear badges or

other special identification (e.g., simi

lar to badges worn by unaccompanied

minors); or

(5) Otherwise mandating separate

treatment for passengers with a dis

ability, unless permitted or required by

this part or other applicable Federal

requirements.

421

14CFR Ch. II (1-1-12 Edition)

§362.35

for boarding, even if the passenger does

not explicitly request the information.

(d) Any limitations on the avail*

ability of storage facilities, in the

cabin or in the cargo bay, for mobility

aids or other assistive devices com

monly used by passengers with a dis

ability, including storage in the cabin

of a passenger’s wheelchair as provided

in §§382.67 and 382.123 of this part;

(e) Whether the aircraft has an acces

sible lavatory; and

(f) The types of services to passengers

with a disability that are or are not

available on the flight.

§ 382.35 May carriers require pas

sengers with a disability to sign

waivers or releases?

(a) As a carrier, you must not require

passengers with a disability to sign a

release or waiver of liability in order to

receive transportation or to receive

services or accommodations for a dis

ability.

(b) You must not require passengers

with a disability to sign waivers of li

ability for damage to or loss of wheel

chairs or other assistive devices, or for

the loss of, death of, or injury to serv

ice animals. Carriers may note pre-ex

isting damage to an assistive device to

the same extent that carriers do this

with respect to other checked baggage.

§ 382.43 Must information and reserva

tion services of carriers be acces

sible to individuals with hearing

impairments?

Subpart C—Information for

Passengers

§382.41 What flight-related informa

tion must carriers provide to quali

fied individuals with a disability?

As a carrier, you must provide the

following information, on request, to

qualified individuals with a disability

or persons making inquiries on their

behalf concerning the accessibility of

the aircraft expected to make a par

ticular flight. The information you

provide must be specific to the aircraft

you expect to use for the flight unless

it is unfeasible for you to do so (e.g..,

because unpredictable circumstances

such as weather or a mechanical prob

lem require substitution of another air

craft that could affect the location or

availability of an accommodation). The

required information is:

(a) The specific location of seats, if

any, with movable armrests (i.e., by

row and seat number);

(b) The specific location of seats (i.e.,

by row and seat number) that the car

rier, consistent with this part, does not

make available to passengers with a

disability (e.g., exit row seats);

lated or other limitations on the abil

ity to accommodate passengers with a

disability, including limitations on the

availability of level-entry boarding to

the aircraft at any airport involved

with the flight. You must provide this

information to any passenger who

states that he or she uses a wheelchair

(a) If. as a carrier, you provide tele

phone reservation and information

service to the public, you must make

this service available to individuals

who use a text telephone (TTY), wheth

er via your own TTY. voice relay, or

other available technology, as follows:

(1) You must provide access to TTY

users during the same hours as the

telephone service is available to the

general public.

(2) You must ensure that the re

sponse time for answering calls and the

level of service provided to TTY users

is substantially equivalent to the re

sponse time and level of service pro

vided to the general public (i.e.. nonTTY users).

(3) You must not subject TTY users

to charges exceeding those that apply

to non-TTY users of telephone informa

tion and reservation service.

(4) In any medium in which you list

the telephone number of your informa

tion and reservation service for the

general public, you must also list your

TTY number if you have one. If you do

not have a TTY number, you must

state how TTY users can reach your in

formation and reservation service (e.g.,

via a voice relay service).

(5) If you are a foreign carrier, you

must meet this requirement by May 13,

2010.

(b) The requirements of paragraph (a)

do not apply to you in any country in

422

AVTHerfTCAree

US POVtUMMtNt

croJf

§701

TITLE 5—GOVERNMENT ORGANIZATION AND EMPLOYEES

resentatives”, was executed by making the substi

tution for “the Committees on the Judiciary of the

Senate and House of Representatives, the Select Com

mittee on Small Business of the Senate, and the Com

mittee on Small Business of the House of Representa

tives” to reflect the probable intent of Congress.

Subsec. (b). Pub. L. 104-121, § 243(b)(2), substituted

“his or her views with respect to compliance with this

chapter, the adequacy of the rulemaking record with

respect to small entities and the” for “his views with

respect to the”.

Change of Name

Committee on Small Business of Senate changed to

Committee on Small Business and Entrepreneurship of

Senate. See Senate Resolution No. 123, One Hundred

Seventh Congress, June 29, 2001.

Effective Date of 1996 Amendment

Amendment by Pub. L. 104-121 effective on expiration

of 90 days after Mar. 29, 1996, but inapplicable to inter

pretative rules for which a notice of proposed rulemaking was published prior to Mar. 29, 1996, see section

245 of Pub. L. 104-121, set out as a note under section 601

of this title.

CHAPTER 7—JUDICIAL REVIEW

Sec.

701.

702.

703.

704.

705.

706.

Application; definitions.

Right of review.

Form and venue of proceeding.

Actions reviewable.

Relief pending review.

Scope of review.

SHORT TITLE

The provisions of sections 551 to 559 of this title and

this chapter were originally enacted by act June 11,

1946. ch. 423, 60 Stat, 237, popularly known as the “Ad

ministrative Procedure Act”. That Act was repealed as

part of the general revision of this title by Pub. L.

89-554 and its provisions incorporated into sections 551

to 559 of this title and this chapter.

§701. Application; definitions

(a) This chapter applies, according to the pro

visions thereof, except to the extent that—

(1) statutes preclude judicial review; or

(2) agency action is committed to agency

discretion by law.

(b) For the purpose of this chapter—

(1) “agency” means each authority of the

Government of the United States, whether or

not it is within or subject to review by an

other agency, but does not include—

(A) the Congress;

(B) the courts of the United States;

possessions of the United States;

(D) the government of the District of Co

lumbia:

(E) agencies composed of representatives

of the parties or of representatives of organi

zations of the parties to the disputes deter

mined by them;

(F) courts martial and military commis

sions;

(G) military authority exercised in the

field in time of war or in occupied territory;

(H) functions conferred by sections 1738,

1739, 1743, and 1744 of title 12; subchapter II

of chapter 471 of title 49; or sections 1884,

1891-1902, and former section 1641(b)(2), of

title 50, appendix; and

Page 108

(2) “person”, “rule”, “order”, “license”,

“sanction”, “relief”, and “agency action”

have the meanings given them by section 551

of this title.

(Pub. L. 89-554, Sept. 6, 1966, 80 Stat. 392; Pub. L.

103-272, §5(a), July 5, 1994, 108 Stat. 1373; Pub. L.

111-350, §5(a)(3), Jan. 4, 2011, 124 Stat. 3841.)

Historical and Revision Notes

Derivation

(a)

U.S. Code

Revised Statutes and

Statutes at large

5U.S.C. 1009 (intro

ductory clause).

June 11, 1946, ch. 324, §10

(introductory clause), 60

Stat. 243.

In subsection (a), the words “This chapter applies, ac

cording to the provisions thereof,” are added to avoid

the necessity of repeating the introductory clause of

former section 1009 in sections 702-706.

Subsection (b) is added on authority of section 2 of

the Act of June 11, 1946, ch. 324, 60 Stat. 237, as amend

ed, which is carried into section 551 of this title.

In subsection (b)(1)(G), the words “or naval” are

omitted as included in “military”.

In subsection (b)(1)(H), the words “functions which by

law expire on the termination of present hostilities,

within any fixed period thereafter, or before July 1,

1947” are omitted as executed. Reference to the “Selec

tive Training and Service Act of 1940” is omitted as

that Act expired on Mar. 31, 1947. Reference to the

“Sugar Control Extension Act of 1947” is omitted as

that Act expired on Mar. 31. 1948. References to the

“Housing and Rent Act of 1947, as amended” and the

“Veterans' Emergency Housing Act of 1946” have been

consolidated as they are related. The reference to

former section 1641(b)(2) of title 50. appendix, is re

tained notwithstanding its repeal by §lll(a)(l) of the

Act of Sept. 21, 1961. Pub. L. 87-256. 75 Stat. 538. since

§111(0 of the Act provides that a reference in other

Acts to a provision of law repealed by §lllfa) shall be

considered to be a reference to the appropriate provi

sions of Pub. L. 87-256.

Standard changes are made to conform with the defi

nitions applicable and the style of this title as outlined

in the preface to the report.

References in Text

Sections 1891-1902 of title 50. appendix, referred to in

subsec. (b)il.KH), were omitted from the Code as exe

cuted.

Amendments

2011—Subsec. (b)(1)(H). Pub. L. 111-350 struck out

“chapter 2 of title 41:” after “title 12;”.

1994—Subsec. (b)(1)(H). Pub. L. 103-272 substituted

“subchapter II of chapter 471 of title 49: or sections" for

“or sections 1622.”.

§ 702. Right of review

A person suffering legal wrong because of

agency action, or adversely affected or ag

grieved by agency action within the meaning of

a relevant statute, is entitled to judicial review

thereof. An action in a court of the United

States seeking relief other than money damages

and stating a claim that an agency or an officer

or employee thereof acted or failed to act in an

official capacity or under color of legal author

ity shall not be dismissed nor relief therein be

denied on the ground that it is against the

United States or that the United States is an in

dispensable party. The United States may be

named as a defendant in any such action, and a

judgment or decree may be entered against the

United States: Provided, That any mandatory or

Page 109

injunctive decree shall specify the Federal offi

cer or officers (by name or by title), and their

successors in office, personally responsible for

compliance. Nothing herein (1) affects other lim

itations on judicial review or the power or duty

of the court to dismiss any action or deny relief

on any other appropriate legal or equitable

ground; or (2) confers authority to grant relief if

any other statute that grants consent to suit ex

pressly or impliedly forbids the relief which is

sought.

(Pub. L. 89-554, Sept. 6, 1966, 80 Stat. 392; Pub. L.

94-574, §1, Oct. 21, 1976, 90 Stat. 2721.)

cial review. A preliminary, procedural, or inter

mediate agency action or ruling not directly reviewable is subject to review on the review of

the final agency action. Except as otherwise ex

pressly required by statute, agency action

otherwise final is final for the purposes of this

section whether or not there has been presented

or determined an application for a declaratory

order, for any form of reconsideration, or, unless

the agency otherwise requires by rule and pro

vides that the action meanwhile is inoperative,

for an appeal to superior agency authority.

{Pub. L. 89-554, Sept. 6, 1966, 80 Stat. 392.)

Historical and Revision notes

Historical and Revision Notes

Derivation

§706

TITLE 5—GOVERNMENT ORGANIZATION AND EMPLOYEES

U.S. Code

5 U.S.C. 1009(a).

Revised Statutes and

Statutes at Large

Derivation

June 11. 1946, ch. 324. § 10(a).

60 Stat. 243

U.S. Code

5 U.S.C. 1009(0.

Revised Statutes and

Statutes at Large

June 11, 1946. ch. 324. §10(0.

60 Stat. 243.

Standard changes are made to conform with the defi

nitions applicable and the style of this title as outlined

in the preface to the report.

Standard changes are made to conform with the defi

nitions applicable and the style of this title as outlined

In the preface of this report.

Amendments

1976—Pub. L. 94-574 removed the defense of sovereign

immunity as a bar to judicial review of Federal admin

istrative action otherwise subject to judicial review.

§ 705. Relief pending review

§ 703. Form and venue of proceeding

The form of proceeding for judicial review is

the special statutory review proceeding relevant

to the subject matter in a court specified by

statute or. in the absence or inadequacy thereof,

any applicable form of legal action, including

actions for declaratory judgments or writs of

prohibitory or mandatory injunction or habeas

corpus, in a court of competent jurisdiction. If

no special statutory review proceeding is appli

cable, the action for judicial review may be

brought against the United States, the agency

by its official title, or the appropriate officer.

Except to the extent that prior, adequate, and

exclusive opportunity for judicial review is pro

vided by law. agency action is subject to judicial

review in civil or criminal proceedings for judi

cial enforcement.

(Pub. L. 89-554. Sept. 6. 1966. 80 Stat. 392: Pub. L.

94-574. §1, Oct. 21. 1976, 90 Stat. 2721.)

Historical and Revision Notes

Derivation

U.S. Code

5 U.S.C. 1009(b).

Revised Statutes and

Statutes at Large

June 11, 1946. ch. 324. § 10(b),

60 Slat. 243.

Standard changes are made to conform with the defi

nitions applicable and the style of this title as outlined

in the preface to the report.

Amendments

1976—Pub. L. 94-574 provided that if no special statu

tory review proceeding is applicable, the action for ju

dicial review may be brought against the United

States, the agency by its official title, or the appro

priate officer as defendant.

§ 704. Actions reviewable

Agency action made reviewable by statute and

final agency action for which there is no other

adequate remedy in a court are subject to judi-

When an agency finds that justice so requires,

it may postpone the effective date of action

taken by it, pending judicial review. On such

conditions as may be required and to the extent

necessary to prevent irreparable injury, the re

viewing court, including the court to which a

case may be taken on appeal from or on applica

tion for certiorari or other writ to a reviewing

court, may issue all necessary and appropriate

process to postpone the effective date of an

agency action or to preserve status or rights

pending conclusion of the review proceedings.

(Pub. L. 89-554, Sept. 6, 1966, 80 Stat. 393.)

Historical and Revision Notes

Derivation

V S. Code

' U.S.C. KldfKd).

Statutes and

Statutes at Laron

Juno 11. 1916. i.:h. 321 SlOicIV

(id St-iil. 2d3

Standard changes are made to conform with the defi

nitions applicable and the style of this title as outlined

in the preface of this report.

§ 706. Scope of review

To the extent necessary to decision and when

presented, the reviewing court shall decide all

relevant questions of law. interpret constitu

tional and statutory provisions, and determine

the meaning or applicability of the terms of an

agency action. The reviewing court shall—

(1) compel agency action unlawfully with

held or unreasonably delayed: and

(2) hold unlawful and set aside agency ac

tion, findings, and conclusions found to be—

(A) arbitrary, capricious, an abuse of dis

cretion, or otherwise not in accordance with

law;

(B) contrary to constitutional right,

power, privilege, or immunity;

thority, or limitations, or short of statutory

right;

(D) without observance of procedure re

quired by law;

SUPREME COURT OF THE UNITED STATES

OFFICE OF THE CLERK

WASHINGTON, DC 20543-0001

December 2,2021

Aaron Abadi

82 Nassau Street Apt, 140

New York, NY 10038

RE: Abadi v. Transportation Security Administration

Application for injunctive relief

Dear Mr. Abadi:

Your application for injunctive relief received December 1,2021 is herewith returned

for the following reason(s):

You failed to comply with Rule 23.3 of the Rules of this Court which requires that

you first seek the same relief in the appropriate lower courts and attach copies of the

orders from the lower courts to your application filed in this Court. While you have

provided an order denying temporary relief pending review by a three-judge panel,

you have not provided a final order on the motion pending before the panel in the

U.S. Court of Appeals for the Second Circuit.

In accordance with Rule 23.3 of this Court's Rules you must set forth with

particularity why relief is not available from any other court and why the relief you

seek is justified.

You are required to state the grounds upon which this Court's jurisdiction is

invoked, with citation of the statutory provision.

Sincerely,

Scott S^Harris, Clerk

Reinfection with COVID-19 | CDC

8/19/2021

Centers for Disease

Control and Prevention

ioa?»ojo* '

COVID-19

Reinfection with COVID-19

Updated Aug. 6, 2021

• •w

Cases of reinfection with COVID-19 have been reported, but remain rare.

In general, reinfection means a person was infected (got sick) once, recovered, and then later became infected again. Based

on what we know from similar viruses, some reinfections are expected. We are still learning more about COVID-19. Ongoing

COVID-19 studies will help us understand:

• How likely is reinfection

• How often reinfection occurs

• How soon after the first infection can reinfection take place

• How severe are cases of reinfection

• Who might be at higher risk for reinfection

• What reinfection means for a person's immunity

• If a person is able to spread COVID-19 to other people when reinfected

Delta Variant

The Delta variant causes more infections and spreads faster than earlier forms of the virus that causes COVID-19. It

might cause more severe illness than previous strains in unvaccinated people.

• Vaccines continue to reduce a person's risk of contracting the virus that cause COVID-19, including this variant.

• Vaccines continue to be highly effective at preventing hospitalization and death, including against this variant.

• Fully vaccinated people with breakthrough infections from this variant appear to be infectious for a shorter period.

• Get vaccinated and wear masks indoors in public spaces to reduce the spread of this variant.

■i

About the Delta Variant

Variants in the US

What CDC is doing

CDC is actively working to learn more about reinfection to inform public health action. CDC developed recommendations for

public health professionals to help decide when and how to test someone for suspected reinfection. CDC has also provided

information for state and local health departments to help investigate suspected cases of reinfection. We will update this

guidance as we learn more about reinfection.

https://www.edc gov/coronavlrijs/2019-ncov/your-heallh/relrifeetion.html

1/2

8/19/2021

Reinfection with COVlO-191 CDC

Important Ways to Slow the Spread of COVID-19

• Get a COVID-19 vaccine as soon as you can. Find a vaccine.

• Wear a mask that covers your nose and mouth to help protect yourself and others.

• Stay 6 feet apart from others who don’t live with you.

• Avoid crowds and poorly ventilated indoor spaces.

• Wash your hands often with soap and water. Use hand sanitizer if soap and water aren't available.

More Information

How to Protect Yourself & Others

How Do I Find a COVID-19 Vaccine?

About Variants of the Virus that Causes COVID-19 | CDC

Choosing Safer Activities | CDC

Last Updated Aug. 6, 2021

https. //www.cde.gov/coronavirus/20l9-neov/your-health/reinfect ion. html

2/2

UNITED STATES OF AMERICA

DEPARTMENT OF TRANSPORTATION

OFFICE OF THE SECRETARY

WASHINGTON, D.C.

NOTICE OF ENFORCEMENT POLICY:

ACCOMMODATION BY CARRIERS OF PERSONS WITH DISABILITIES

WHO ARE UNABLE TO WEAR OR SAFELY WEAR MASKS WHILE ON

COMMERCIAL AIRCRAFT

The Office of Aviation Consumer Protection (OACP), a unit within the Office of the General

Counsel of the U.S. Department of Transportation (DOT or the Department), is issuing this

Notice of Enforcement Policy to remind U.S. and foreign air carriers of their legal obligation to

accommodate the needs of passengers with disabilities when developing procedures to

implement the Federal mandate on the use of masks to mitigate the public health risks associated

with the Coronavirus Disease 2019 (COVID-19). OACP will exercise its prosecutorial

discretion and provide airlines 45 days from the date of this notice to be in compliance with their

obligation under the Air Carrier Access Act (ACAA)1 and the Department’s implementing

regulation in 14 CFR Part 382 (Part 382) to provide reasonable accommodations to persons with

disabilities who are unable to wear or safely wear masks, so long as the airlines demonstrate that

they began the process of compliance as soon as this notice was issued.

To carry out the Executive Order on Promoting COVID-19 Safety in Domestic and International

Travel (Executive Order),2 the Centers for Disease Control and Prevention (CDC) issued an

order on January 29, 2021 (CDC Order)3 that, among other things, requires U.S. and foreign air

carriers to use their best efforts to ensure that persons on flights to, within, or from'1 the United

States wear a mask for the duration of travel, including when boarding and disembarking aircraft.

The CDC Order exempts certain categories of persons from the mask-wearing mandate,

including a person with a disability who cannot wear a mask, or who cannot safely wear a mask

1 The ACAA, signed into law in 1986, prohibits discrimination by airlines against individuals with disabilities in

commercial air transportation. The Americans with Disabilities Act, signed into law after the ACAA in 1990.

prohibits discrimination against individuals with disabilities in employment, state or local government, public

accommodations, commercial facilities, telecommunications, and transportation other than by commercial airlines.

2 Exec. Order No. 13998, 86 FR 7205 Can. 26. 2021).

3 Order Under Section 361 of the Public Health Service Act (42 U.S.C. 264) and 42 Code of Federal Regulations

70.2, 71.31(b), 71.32(b): Requirement for Persons to Wear Masks While on Conveyances and at Transportation

Hubs (CDC Order), available at https://www.cdc.gov/quarantine/pdf/Mask-Order-CDC_GMTF_01-29-21 -p.pdf.

4 CDC Order specifies that “ [conveyance operators must also require all persons to wear masks on board

conveyances departing from the United States and for the duration of their travel until the conveyance arrives at the

foreign destination if at any time any of the persons onboard (passengers or conveyance operators) will return to the

United States while this Order remains in effect." CDC Order at 9.

because of the disability.5 However, it allows airlines to impose requirements or conditions for

carriage on the categories of persons exempted from the mask mandate, whether the person is a

child under the age of two, a person for whom wearing a mask would create a risk to workplace

safety, health, or job duty, or a person with a disability who is unable to wear or safely wear a

mask because of the disability. Additionally, on January 31, 2021, the Transportation Security

Administration (TSA) issued a Security Directive (SD) to aircraft operators on face mask

requirements to implement the Executive Order and to support enforcement of the CDC Order

mandating masks.6 The Department supports actions by the airline industry to have procedures

in place requiring passengers to wear masks in accordance with the CDC Order, CDC guidance,

and TSA SD. At the same time, the ACAA and Part 382, which are enforced by OACP, require

airlines to make reasonable accommodations, based on individualized assessments, for

passengers with disabilities who are unable to wear or safely wear a mask due to their disability.

This Notice sets forth the enforcement policy that OACP will apply in determining, on a

prospective basis, whether airlines are complying with the requirements of the ACAA and Part

382 when implementing procedures requiring mask-wearing by passengers.

Background

SARS-CoV-2, the virus that causes COVID-19, spreads most often when an infected person

coughs, sneezes, or talks, and droplets from the infected individual’s mouth or nose are spread

through the air and come in contact with people nearby.7 Persons with COVID-19 infection may

have symptoms of fever, cough, or shortness of breath,8 or they may be asymptomatic9 or presymptomatic10 but still able to spread the virus.11 CDC has made clear that appropriately worn

masks reduce the spread of COVID-19—particularly given the evidence of pre-symptomatic and

asymptomatic transmission of COVID-19.12

5 CDC Order al 4 and 5 (noting that this is a narrow exception that includes a person with a disability who cannot

wear a mask for reasons related to disability).

0 TSA Security Directive 1544-21-02: Security Measures - Face Mask Requirements (January 31. 2021).

7 See Ctrs. for Disease Control & Prevention, How COV1D Spreads. CDC.gov (last updated Oct. 28, 2020),

iittps://\v\v\v.cdc.gov/cc)ronaviriis/2ni9"ticov/prevenl-get.tinL»-.s8ck/hovv-covid-spreads.h[rit!: Ctrs. for Disease Control

6 Prevention, Considerations for Wearing Masks, CDC.gov (last updated Dec. 18, 2020).

liit'ps:.'7w\vw.cdc.gov;'coron<iviru.s/20!9-ncQv/pM'!'venl-g.eUing-sick/cioih-face-covDr"Suidance.htrnl.

8 Ctrs. for Disease Control & Prevention, Symptoms of Coronavirus, CDC.gov (last updated Dec. 22, 2020),

https://wiww.cdc.gov/coronavirus/2019-ncov7svmpiorrjSiesLing/symp[orris.iitml.

9 An asymptomatic case is an individual infected with SARS-CoV-2, who does not exhibit symptoms during the

course of infection. Ctrs. for Disease Control & Prevention, COVID-19 Pandemic Planning Scenarios, CDC.gov

(last updated Sept. 10, 2020), htips://www.cdc.gov/coronavirus/20l9-m:ov7hcp/planning-sceiiarios.htmi.

10 A pre-symptomatic case of COVID-19 is an individual infected with SARS-CoV-2, who has not exhibited

symptoms at the time of testing, but who later exhibits symptoms during the course of the infection. COVID-19

Pandemic Planning Scenarios, supra note 8.

11 See How COVID Spreads and Considerations for Wearing Masks, supra note 6.

12 CDC Order at 6.

As of January 27, 2021, there have been over 99 million confirmed cases of COVID-19 globally

and over 25 million confirmed cases of COVID-19 in the United States, with over 2 million

deaths globally and over 400,000 deaths in the United States due to the disease.13 To slow the

spread of COVID-19, on January 21, 2021, President Biden issued Executive Order 13998,

which directs the heads of certain Federal agencies to take immediate actions to require maskwearing in domestic and international transportation. The Executive Order further provides that

the heads of agencies may make categorical or case-by-case exceptions to policies developed

under the order, consistent with applicable law, to the extent that doing so is necessary or

required by law.

Pursuant to the Executive Order, on January 29, 2021, CDC issued an order directing

conveyance operators, which includes airlines, to use best efforts to ensure that any person on the

conveyance, such as an aircraft, wears a mask when boarding, disembarking, and for the duration

of travel. Recognizing that there are specific instances when wearing a mask may not be

feasible, the CDC Order exempts several categories of persons from the mask mandate,

including “a person with a disability who cannot wear a mask, or who cannot safely wear a mask

because of the disability as defined by the Americans with Disabilities Act (42 U.S.C. 12101 et

seq.).” The Americans with Disabilities Act (ADA) defines a person with a disability to include

a person who has a physical or mental impairment that substantially limits one or more major life

activities.14 To ensure that only qualified persons under the exemptions would be able to travel

without a mask, the CDC Order permits operators of transportation conveyances, such as

airlines, to impose requirements, or conditions for carriage, on persons requesting an exemption,

including requiring a person seeking an exemption to request an accommodation in advance,

submit to medical consultation by a third party, provide medical documentation by a licensed

medical provider, and/or provide other information as determined by the operator. The CDC

Order also permits operators to require protective measures, such as a negative result from a

SARS-CoV-2 viral test or documentation of recovery from COVID-19 or seating or otherwise

situating the individual in a less crowded section of the conveyance, e.g., aircraft 15

In response to COVID-19, U.S. and foreign air carriers generally have implemented policies

requiring passengers to wear masks onboard aircraft even before the issuance of the Executive

Order and the CDC Order. Some carriers have adopted policies that expressly allow “no

exceptions” to the mask requirement other than for children under the age of two.16 OACP has

13 Id. at 5.

H 42 U.S.C. 12102(4). OACP notes that the definition of a person with a disability under the ADA is almost

identical to the definition of a person with a disability under the Department’s ACAA regulation. See also CDC

Order at 4 and 5.

15 CDC Order at 4. CDC definitions for SARS-CoV-2 viral test and documentation of recovery are available in the

Frequently Asked Questions at https:/./www.cdc.tzov7coronavirus/20i9-ncov/travelers/Tesr'iiie-international-airtravelers.html.

16 It would a violation of the ACAA to have an exemption for children under 2 on the basis that children that age

cannot wear or safely wear a mask and not to have an exemption for the limited number of individuals with

disabilities who similarly cannot wear or safely wear a mask when there is no evidence that these individuals with

disabilities would pose a greater health risk to others. See Ctrs. for Disease Control & Prevention, Information for

Pediatric Healthcare Providers, CDC.gov (last updated Dec. 30, 2020), https:/Avvvw.cdc.aov/coronavirus/2019-

received complaints from persons who assert they have a disability that precludes their wearing a

mask, and who contend that they were denied transport by an airline under a “no exceptions

allowed” mask policy.

The CDC and other medical authorities recognize that individuals with certain medical

conditions may have trouble breathing or other difficulties such as being unable to remove the

mask without assistance if required to wear a mask that fits closely over the nose and mouth. 17

The CDC Order provides that a mask is not required in circumstances where an individual is

“unconscious (for reasons other than sleeping), incapacitated, unable to be awakened, or

otherwise unable to wear the mask without assistance.”18 The Order notes that individuals may

remove masks “who are experiencing difficulty breathing or shortness of breath or are feeling

winded may remove the mask temporarily until able to resume normal breathing with the

mask”.’’19 Also, individuals with acute illness may remove the mask if it “interferes with

necessary medical care such as supplemental oxygen administered via an oxygen mask.”20 CDC

will issue additional guidance regarding persons who cannot wear a mask on the basis of

disability.21 Individuals who have a physical or mental impairment that substantially limits one

or more major life activities are individuals with a disability for purposes of the ACAA and Part

382.22

Legal Authority

The ACAA prohibits U.S. and foreign air carriers from denying air transportation to or otherwise

discriminating in the provision of air transportation against a person with a disability by reason

of the disability.23 When a policy or practice adopted by a carrier has the effect of denying

service to or otherwise discriminating against passengers because of their disabilities, the

Department’s disability regulations in Part 382 require the airline to modify the policy or practice

as necessary to provide nondiscriminatory service to the passengers with disabilities, provided

that the modifications would not constitute an undue burden or fundamentally alter the airline’s

program.24

Part 382 allows an airline to refuse to provide air transportation to an individual whom the airline

determines presents a disability-related safety risk, provided that the airline can demonstrate that

ncov/hcp/pedlatric-hcp.html (stating that “(decent evidence suggests that compared to adults, children likely have

similar viral loads in their nasopharynx, similar secondary infections rates, and can spread the virus to others’).

Considerations for Wearing Masks, supra note 6.

18 CDC Order at 4.

19 CDC Order at 4 (footnote 7).

20 CDC Order at 4 (footnote 7).

21 CDC Order at 5 (footnote 9).

22 49 U.S.C. 41705(a); 14 CFR 382.3.

23 4 9 U.S.C. 41705(a); 14 CFR 382.11.

24 14 CFR 382.13.

the individual would pose a “direct threat” to the health or safety of others onboard the aircraft,

and that a less restrictive option is not feasible.25 To support a determination that an individual

poses such a direct threat, the airline must make “an individualized assessment, based on

reasonable judgment that relies on current medical knowledge or on the best available objective

evidence," in order to ascertain “ (i) [t]he nature, duration, and severity of the risk; (ii) [t]he

probability that the potential harm to the health and safety of others will actually occur; and

(iii) [wjhether reasonable modifications of policies, practices, or procedures will mitigate the

risk.”26 If the airline has adequately determined, based on such an individualized assessment,

that the passenger does pose a direct threat to the health or safety of others because of a

disability-related condition, the airline “must select the least restrictive response from the point

of view of the passenger, consistent with protecting the health and safety of others,” and must,

for example, “not refuse transportation to the passenger if [the airline] can protect the health and

safety of others by means short of a refusal” to provide transportation.27 Furthermore, the

Department’s regulations permit the airline to impose reasonable conditions, restrictions, or

requirements on a passenger who has a “medical condition" that may cause the passenger to pose

a risk to the health and safety of others.28

Enforcement Policy

The authority to pursue or not to pursue enforcement action against airlines with respect to air

travel consumer protection and civil rights requirements, including compliance with the ACAA,

lies with OACP.29

In accordance with the CDC Order, as conveyance operators, airlines are required to implement

face mask policies that treat passengers presumptively as potential carriers of the SARS-CoV-2

virus and, therefore, as presenting a potential threat to the health and safety of other passengers

and the crew.30 Notably, however, the CDC Order exempts from the mask mandate a person

with a disability who cannot wear a mask, or who cannot safely wear a mask because of the

25 14 CFR 382.19(c)(1), (2).

2G Id.

14 CFR 382.19(c)(2).

28 14 CFR 382.21(a)(3). The rule recognizes that a passenger with a communicable disease or infection, such as

infection with the SARS-CoV-2 virus or other “medical condition,” may pose a direct threat to the health and safety

of others onboard an aircraft, and the airline may be justified in refusing to transport the passenger or in requiring

protective measures to mitigate the risk, consistent with the directives of public health authorities. 14 CFR

382.21(a)-(b).

29 4 9 U.S.C. 41705(c), 46301. The CDC Order requiring aircraft operators to mandate mask use will be enforced by

the Transportation Security Administration under its statutory and regulatory authorities, including 49 U.S.C. 106,

114, 44902, 44903, and 46301; and 49 CFR 1542.303, 1544.305, and 1546.105.

30 CDC Order at 5 ("The virus that causes COVID-19 spreads very easily and sustainably between people who are

in close contact with one another (within about 6 feet)."); id. at 7 (“Traveling on public conveyances increases a

person's risk of getting and spreading COVID-19 by bringing persons in close contact with others, often for

prolonged periods, and exposing them to frequently touched surfaces.").

disability. The Department also requires reasonable accommodations for persons with

disabilities who are unable to wear masks or are unable to wear them safely.31

Airlines have expressed concerns to OACP that a significant number of passengers may claim

medical exemption from the mask requirements without an apparent credible basis. The CDC

Order permits airlines to impose requirements or conditions for carriage on a person requesting

an exemption, including requiring a person seeking an exemption to request an accommodation

in advance, submit to medical consultation by a third party, provide medical documentation by a

licensed medical provider, and/or provide other information as determined by the airline.32

Similarly, under the Department’s disability regulation in 14 CFR Part 382, airlines may impose

conditions, restrictions, or requirements on a passenger asserting that a medical condition

prevents the passenger from wearing a face mask, because the passenger may pose a direct threat

to the health or safety of others, as any passenger is a potential carrier of the SARS-CoV-2

virus.33 In short, both the CDC Order and Part 382 permit airlines to require passengers to

consult with the airline’s medical expert and/or to provide medical evaluation documentation

from the passenger’s doctor sufficient to satisfy the airline that the passenger does, indeed, have

a recognized medical condition precluding the wearing or safe wearing of a mask.

Airlines have also represented to OACP that, given the number of passengers making such

claims, it is not practicable for airlines to make the required individualized assessment of

appropriate mitigation measures at the airport on the day of the flight. Under the Department’s

disability regulation in Part 382, airlines must conduct an individualized assessment of the

potential ways to mitigate the risk to others of allowing passengers with disabilities to fly

without a mask.34 However, Part 382, like the CDC Order, permits airlines to require passengers

with disabilities who are unable to wear masks to request an accommodation in advance.

Airlines may also require such passengers to check in early and to agree to undergo the required

individualized assessment a reasonable period in advance of the scheduled flight, provided that

the process is completed on the day of travel.

In addition, airlines may impose protective measures to reduce or prevent the risk to other

passengers. For example, airlines may require protective measures, such as a negative result

from a SARS-CoV-2 test,30 taken at the passenger’s own expense, during the days immediately

31 14 CFR 382.13.

32 Id.

33 14 CFR 382.21(a)(3).

34 14 CFR 382.19(c)(1).

35 On January 12, 2021, CDC issued an order requiring any passenger flying into the United States from a foreign

country to provide, before boarding the flight, proof of a negative pre-departure test result for SARS-CoV-2, the

virus that causes COVID-19, or documentation of recovery from COVID-19 after a previous SARS-CoV-2

infection. This order became effective on January 26, 2021. Order Under Section 361 of the Public Health Service

Act (42 U.S.C. 264) and 42 Code of Federal Regulations 70.2, 71.31 (b): Requirement for Negative Pre-Departure

COVID-19 Test Result or Documentation of Recovery From COVID-19 for All Airlines or Other Aircraft

Passengers Arriving into the United States from Any Foreign Country, available at

https://www.cdc.gov/quarantine/pdf/global-airline-testing-order_2021-01-2_R3-signed-encrypted-p.pdf .

prior to the scheduled flight.36 Further, the airline may arrange for additional, appropriate

mitigation measures, including arranging for the passenger to sit in a less crowded section of the

plane, to take a flight at times when airports are less crowded, and/or scheduling the passenger

on a less crowded flight.

To ensure travelers are aware of the face mask requirements, airlines should use their best efforts

to make this information easily available. The Department requires airlines provide information

on request, to individuals with disabilities, about any service-related or other limitations on the

airline’s ability to accommodate passengers with a disability.37 Also, CDC and TSA require

airlines to provide passengers with prominent and adequate notice to facilitate awareness and

compliance with the requirement that masks must be worn, subject to certain limited exemptions,

to mitigate the spread of COVID-19 during air travel.38 Airlines’ obligation to provide

information on the face mask requirements includes updating airlines’ face mask policies on

their websites to ensure accuracy and consistency with the ACAA, CDC Order and TSA SD.39

In recognition of the CDC Order, as well as airlines’ efforts to minimize the potential for

transmission of the virus onboard aircraft by implementing policies requiring passengers to wear

masks onboard aircraft even before the issuance of the CDC Order, OACP will exercise its

prosecutorial discretion and provide airlines an opportunity to follow the steps described herein

to become compliant before taking further action.40 Airlines are expected to review their face

mask policies immediately and to revise them as necessary to comply with the ACAA and

Department’s disability regulation in Part 382. OACP will refrain from taking enforcement

action against an airline for a period of up to 45 days from the date of this notice, so long as the

airline demonstrates that it began the process of compliance as soon as this notice was issued.

This timeframe should provide airlines with adequate time to review and revise their mask

procedures as needed to comply with the law.41

39 A positive tesl result for SARS-CoV-2, the virus that causes COVID-19, is a valid reason for an airline to deny

transport to any individual, including an individual with a disability. CDC recommends isolation to separate people

infected with SARS-CoV-2 from people who are not. infected. See Ctrs. for Disease Control & Prevention, Isolate if

You are Sick. CDC.gov (last updated Jan. 7. 2021), h!;ps:/^vwv--.cdc.gov/coi'oiiavirus/2Q19 -ncov/if'-voir ai'esick/isolation.iHrtil.

37 14 CFR 382.41.

38 CDC Order at 1: TSA SD at 2.

39 See 14 CFR 399.79 (b) (2) (defining an airline's practice as “deceptive” to consumers within the meaning of

section 41712 if it is likely to mislead a consumer, acting reasonably under the circumstances, with respect to a

material matter).

40 Every day, we are learning more about how COVID-19 spreads and affects people and communities. OACP will

continue to follow the data and information provided by public health authorities, such as CDC, on actions necessary

to limit the spread or impact of SARS-CoV-2 and will make changes to this notice as necessary to be consistent with

current medical knowledge and the best available objective evidence.

41 This document is a temporary notice of enforcement discretion. Regulated entities may rely on this notice as a

safeguard from Departmental enforcement as described herein. To the extent that this notice includes guidance on

how regulated entities may comply with existing regulations, it does not have the force and effect of law and is not

meant to bind the regulated entities in any way.

Questions regarding this Notice may be addressed to the Office of Aviation Consumer Protection

(C-70), 1200 New Jersey Avenue, S.E., Washington, D.C. 20590.

By:

Blane A. Workie

Assistant General Counselfor

Office ofAviation Consumer Protection

Dated: February 5, 2021

An electronic version of this document is available at http://www.dot.gov/airconsumer

The ADA and Face Mask Policies > Southeast ADA Center

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Southeast p

Center

Information, Guidance and Training on the Americans with Disabilities Act

Home » Disability issues »The AD^ and Face Mask Policies

The ADA and Face Mask Policies

Updated: 8/27/2021

Contents

• Introduction

• May a federal, state or local government agency or a business require

customers to wear a face mask?

o Note: CDC Guidance :

° Updates (8/27/2021) .

o Court Cases: ADA and Face Masks

• is there a reason a person might not be able to wear a face mask?

° Examples of a person with a disability who might not be able to wear a

face mask

• if a person with a disability is unable t.o wear a face mask, do I still have to

allow them in mv business or government agency?

• Are there any situations when an agency or business does not have to

provide a reasonable modification to the face mask policy?

0 Fundamental Alteration

° Undue Burden

° Direct Threat

• How should I respond to a request for a reasonable modification to the face

mask policy?

0 Best Practice Tip

{

• Summary & Resources

0 Citation

-x-t•

° Endnotes

° Disclaimer

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3--

Introduction

The COVID-19 pandemic has changed our world in many ways. People with

disabilities, people with chronic health conditions such as heart disease, lung disease,

and diabetes, and people over the age 60, are at a higher risk of becoming infected

and more likely to become seriously ill. Safety measures such as social distancing,

vaccines, respiratory etiquette, and the wearing of face masks or cloth face coverings

;

are our first line of defense to keep people safe from severe illness. ^

;

Note: In this document, the term "face mask" will be used for both face masks and

cloth face coverings.

Wearing a face mask is one important way to slow the spread of COVID-19. [45]

On July 27, 2021, the Centers for Disease Control and Prevention (CDC) updated its

guidance on face masks. The CDC recommends that face masks be worn by

everyone, regardless of vaccination status, in areas of substantial and high

transmission. Wearing a face mask increases protection from the Delta variant and

lessens the chance of spreading it to others.The CDC considers substantial

transmission to be 50 to 100 new cases per 100,000 people over a seven-day period.

High transmission is 100 or more cases per 100,000 people over seven days or in

areas with 8% or higher positive test rates.^

Additionally, the CDC urges that fully vaccinated people who have compromised

immune systems continue to wear a face mask. The number of federal, state and

U.S. territories with face mask mandates changes in response to current outbreak

{

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Wearing a face mask may be difficult for some people with a disability. State and

local government agencies or private businesses that want customers to use a face

mask may have questions and concerns. This fact sheet offers guidance to questions

about the issue of face mask policies, reasons why a person with a disability might

not be able to wear a face mask, and the legal rights a person has under the

Americans with Disabilities Act (ADA).

May a federal, state or local government agency or a business require customers

to wear a face mask?

NOTE: CDC Guidance

The information from the Centers for Disease Control and Prevention (CDC) and other

authorities has changed as the COVID-19 pandemic evolves and new variants

emerge. Therefore, private businesses and government agencies should follow the

most current information on maintaining safety by reviewing the CDC Coronavirus

(CQV1D-19) information (cdc.gov).

You can also access more information at:

• Accessible CQVID-19 Resources from CDC guidance

Source: Center for Inclusive Design and Innovation (CtDI)

■ Older Adults and People with Disabilities: COViD-19 Resources

Source: Administration for Community Living (ACL)

;

UPDATES

August 27, 2021 - State Mask Mandates

The number of federal, state and U.S. territories with face mask mandates changes in

response to current outbreak conditions. As of August 27, 2021, ten states (California,

Connecticut, Hawaii, Illinois, Louisiana, Nevada, New Mexico, New York, Oregon and

Washington), the District of Columbia, and the territory of Puerto Rico have mask

mandates in place. Also, on August 27, Oregon became the first state to reimpose a

face-covering requirement for people in outdoor public settings, and Illinois' indoor

mask order is being expanded to cover vaccinated people, effective August 30.®

]

August 20, 2021 - Face Masks, Travel and Transportation

The Centers for Disease Control and Prevention (CDC), Transportation Security

Administration (TSA), and the U.S. Department of Transportation (DOT) remind ; ;

people who chose to travel that they are still required to wear a face mask

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v“25”rr :

buses, trains, and other forms of public transportation traveling into, within,"oToutslde

of the United States. This includes all U.S. transportation hubs such as airports and

stations for trains and buses. CDC guidance states that fully vaccinated people are

safe to travel and can resume travel within the United States.^ However, travel

outside the United States poses additional risks. Fully vaccinated travelers might be

at increased risk for getting and possibly spreading some COVID-19 variants]—I

On Friday, August 20,2021, the Transportation Security Administration (TSA) is

extending the face mask requirement for individuals across all transportation

networks throughout the United States, through January 18, 2022. The transportation

network includes airports, onboard commercial aircraft, on over-the-road buses, and

on commuter bus and rail systems]—1

July 27, 2021 - Centers for Disease Control (CDC)

Interim Public Health Recommendations for Fully Vaccinated People

On July 27, 2021, the Centers for Disease Control and Prevention (CDC) updated its

guidance on face masks for fully vaccinated people. The CDC recommends that face

masks be worn by everyone, regardless of vaccination status.^ The guidance

specifically states that a fully vaccinated person should "wear a mask indoors in

public if you are in an area of substantial or high transmission

CDC continues to urge people with compromised immune systems and people who

live in households with people who have compromised immune systems to wear

masks. The CDC recommends that fully vaccinated people who have a known

exposure to someone with suspected or confirmed COVID-19 infection be tested 3-5

days after exposure and to wear face masks in indoor public settings for 14 days or

until they receive a negative test result.Finally, the CDC recommends that all teachers,

staff, students, and school visitors wear masks in school settings, regardless of

vaccination status]^

July 19,2021 - American Academy of Pediatrics (AAP)

COVID-19 Guidance for Safe Schools

;

On July 19, 2021, the American Academy of Pediatrics (AAP), the leading pediatrics

organization in the United States, issued a face mask recommendation for schools

that are re-opening this fall: The AAP advises that all staff and students over the age

of 2 wear face masks when at school unless prohibited by a medical or

developmental condition. The AAP guidance also strongly encourages all

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individuals to receive the COVID-19 vaccine. Schools are urged to provide available

and accessible vaccine resources for the whole community.

;

'“26

AAP endorsed the guidance from the Centers for Disease Control (CDC) that schools

carry out multiple prevention strategies including social distancing, face masks,

handwashing, quarantining, cleaning, disinfections, screening testing, building

ventilation, and respiratory etiquette. These things help limit the transmission of

respiratory pathogens that are airborne or spread by droplets.^

;

Respiratory Etiquette

[

• Covering your mouth and nose when coughing or sneezing.

• Using tissues and throwing them away.

• Washing your hands or using hand sanitizer every time you touch your mouth

or nose.

• Providing tissues and no-touch trash cans to throw them away

• Offering disposable face masks to customers and employees

The AAP, citing guidance from the World Health Organization (WHO), the United

Nations Children's Fund (UNICEF), and the CDC, urges schools to be opened this fall.

They state that there is no evidence of significantly increased community

transmission by opening schools. The AAP also believes that "remote learning

exposed inequities in education, was detrimental to the educational attainment of all

students, and exacerbated a mental health crisis among children and adolescents".

I4Q]

July 9, 2021 - Centers for Disease Control and Prevention (CDC)

Guidance for COVID-19 Prevention in K-12 Schools

;

On July 9, 2021, the Centers for Disease Control and Prevention (CDC) provided

guidance that individuals who are not fully vaccinated (age 2 and older) should

continue to wear face masks indoors and in crowded settings when physical

distancing cannot be maintained. It is recommended that schools maintain 3 feet of

physical distancing in classrooms. Schools should also carry out multiple strategies

to prevent the spread of COVID-19. These strategies include: social distancing, face

masks, handwashing, screening testing, ventilation, and respiratory etiquette. The

CDC emphasized the importance of in-person instruction even when a school cannot

implement all prevention strategies.^

June 10, 2021 - Face Masks, Travel and Transportation - Outdoor Areas si English

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The Centers for Disease Control and Prevention (CDC) issued guidance that face

masks are no longer required in outdoor areas where transportation is provided or at

transportation hubs. Transportation includes: airplanes, trains, school buses,

subways, buses, taxis, ride-shares, trolleys, cable cars, and ships and boats.

Transportation hub is any location where people await, board, or disembark from

public transportation, in these cases, private vehicles are not considered

transportation.

If transportation sites or transportation hubs have outdoor areas (such as on a ferry

or an open-air trolley or bus), wearing a face mask is not required while

outdoors unless otherwise required by the operator, federal, State, tribal, territorial, or

local government. However, the CDC continues to recommend wearing of face masks

in these areas by people who are not fully vaccinated to protect themselves and

others.®

February 1, 2021 - Face Masks, Travel and Transportation

A federal order took effect requiring travelers to wear face masks. According to the

order from the Centers for Disease Control and Prevention (CDC), face masks must

be worn by passengers on trains, buses, trains and subways, airplanes, ships, taxis

and ride-share services as well as any other mode of transportation. The order also

requires face masks at all transportation hubs including airports, bus terminals,

seaports, train stations, and U.S. ports of entry.® This guidance follows President

Biden's executive order requiring face masks to be worn on all federal properties. ®

March 11,2020: Centers for Disease Control and Prevention (CDC)

Face Mask Recommendation

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The World Health Organization (WHO) declared COVID-19 as a pandemic.® The

Centers for Disease Control and Prevention (CDC) noted that studies have shown that

many people who do not have symptoms of COVID-19 can spread the virus to other

people. Because it takes four to fourteen days for someone to show symptoms, they

)

also may infect others without knowing it.® This means that the virus can be shared

between people who are Close to each other. For example, people who are speaking,

coughing, or sneezing may spread the virus even if they do not have symptoms.

]

® Therefore, the CDC recommends that people over age two wear a face mask in

public or where it can be hard to stay six feet apart from others.®

Court Cases: ADA and Face Masks

Resurrection School v. Hertel

In a ruling handed down on August 23, 2021, the Sixth Circuit Court of Appeals,

upheld a district court ruling that refused to block a mask mandate put in place by the

Michigan Department of Health and Human Services. Resurrection Catholic

Elementary School sued Elizabeth Hertel, the Director of the Michigan Department of

Health and Human Services, claiming the face mask mandate was a violation of their

rights to free exercise of religion, equal protection, and due process, because face

masks hide faces "made in God’s image and likeness." Although the mask mandate in

Michigan was lifted before this decision, the Sixth Circuit’s decision is important in the

event a new mask mandate is imposed. The court relied on a rational basis test,

saying the state has a legitimate interest to keep the public safe and that the

mandate applied to all elementary schools and did not single out religious education

institutions.^

Pietcher v. Giant Eagle Inc.

{

In another case decided on October 23, 2020, in the Federal District Court for the

Western District of Pennsylvania, the Court denied a preliminary injunction in the case

of Pietcher v. Giant Eagle Inc. If granted, the injunction would have required Giant

Eagle Inc. to change its policy of requiring all customers to wear a face.mask or other

face covering inside their store. In this case, sixty-nine plaintiffs filed a class action

suit claiming Giant Eagle Groceries were in violation of Title III of the ADA by denying

access to customers who claimed they could not wear a face mask due to their

disabilities. In the ruling, U.S. District Judge Nora Barry Fischer determined that the

store's face mask policy was a correct interpretation of the Pennsylvania Department

of Health's order that face masks are to be worn in public spaces and that those who

cannot wear a face mask may instead wear a face shield. Giant Eagle note

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;

defense that they had in place other modifications to policy and practice consistent

Bunn v. Nike, Inc.

°2&

with ADA Title III to accommodate customers with disabilities*

In July 2020, Bunn v, Nike Inc., San Francisco Superior Court, resulted in a class

action settlement for customers who are deaf or hard of hearing. The suit claimed

that Nike's policy requiring all retail employees to wear face masks violated the ADA.

In the settlement, Nike agreed to make the following changes to address the issues

for customers who are deaf or hard of hearing: (1) reasonable modifications to policy,

practice, and procedure by requiring employees to wear transparent face masks to

provide effective communication; (2) providing guidance to employees about

accommodating customers; and (3) posting signs at store entrances notifying

customers they can request additional assistance.^®

Is there a reason a person might not be able to wear a face mask?

The Centers for Disease Control and Prevention (CDC) states that a person who has

trouble breathing, is unconscious, incapacitated, or otherwise unable to remove the

face mask without assistance should not wear a face mask or cloth face covering.®

Examples of a person with a disability who might not be able to wear a face mask

• Individuals with asthma, chronic obstructive pulmonary disease (COPD), or

other respiratory disabilities may not be able to wear a face mask because of

difficult or impaired breathing. People with respiratory disabilities should

consult their own medical professional for advice about using face masks. The

;

Centers for Disease Control and Prevention (CDC) also states that anyone who

has trouble breathing should not wear a face mask.®

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• People with post-traumatic stress disorder (PTSD), claustrophobia (an

abnormal fear of being in enclosed or narrow places), severe anxiety® may

•<

feel afraid or terrified when wearing a face mask. These individuals may not be

able to stay calm or function when wearing a face mask.

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• i

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• A person who has cerebral palsy may have difficulty moving the small muscles

in the hands, wrists, or fingers. Due to their limited mobility, they may not be

able to tie the strings or put the elastic loops of a face mask over the ears.

This means that the person may not be able to put on or remove a face mask

without assistance.

• A person who uses mouth control devices such as a sip and puff to operate a

wheelchair or assistive technology or uses their mouth or tongue to use

assistive ventilators may be unable to wear a face mask.

)

If a person with a disability is unable to wear a face mask, do I still have to allow

them in my business or government agency?

The number of federal, state and U.S. territories with face mask mandates changes in

response to current outbreak conditions.^ As of July 20, 2021, eight states

(California, Connecticut, Hawaii, Illinois, Nevada, New Mexico, New York, and

Washington), the District of Columbia, and the territory of Puerto Rico have mask

mandates in place.

These mandates vary by state. For the most part, the mandates require face masks

to be worn by people who are unvaccinated and not fully vaccinated inside public

spaces, public transportation, workplaces, congregate settings and any situation that

where six feet of social separation cannot occur. These mandates also include

exemptions for children, people with disabilities or medical conditions, and situations

where face masks interfere with effective communication.^ These state mandates

do not override the consideration of reasonable modifications to policy, practice, and

procedure required by the Americans with Disabilities Act (ADA). Many private

businesses have also developed policies requiring the use of face masks. The ADA

does not have any rules that address the required use of face masks by state and

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If a person with a disability is not able to wear a face mask, state and local

government agencies and private businesses must consider reasonable

modifications to a face mask policy so that the person with the disability can

participate in, or benefit from, the programs offered or goods and services that are

provided. A reasonable modification means changing policies, practices, and

procedures, if needed, to provide goods, services, facilities, privileges, advantages, or

accommodations to an individual with a disability.^ It is important to focus on how

;

to provide goods or services to a customer with a disability in an equal manner. This

can be done by reasonably modifying your policies, practices, or procedures.

;

The requirement to modify a policy, practice, or procedure does not include

individuals without disabilities, as they are not protected under the Americans with

Disabilities Act (ADA).

Examples of reasonable modifications to a face mask policy

Allow a person to wear a scarf, loose face covering, or full face shield instead

of a face mask.

Allow customers to order online with curbside pick-up or no contact delivery in

a timely manner

Allow customers to order by phone with curb-side pick-up or no contact

delivery in a timely manner.

Allow a person to wait in a car for an appointment and enter the building when

called or texted.

Offer appointments by telephone or video calls.

Are there any situations when an agency or business does not have to provide a

reasonable modification to the face mask policy?

There are three reasons under the Americans with Disabilities Act (ADA) that a state

or local government agency or private business may not have to provide a reasonable

modification.

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Fundamental Alteration

;

A state or local government agency or private business may not have to provide a

reasonable modification if the modification would change the nature of the service,

program, activity, goods, services, or facilities.^—

;

A fundamental alteration is a change to such a degree that the original program

service, or activity is no longer the same.^

• Example of a fundamental alternation: A customer requests that a store

deliver her items to her home as a reasonable modification so that she does

not have to enter the store. The store does not offer a home delivery.

Therefore, the store would not have to grant the request for home delivery

since it would be a fundamental alteration of their services.

Undue Burden

A state and local government agency or private business is not required to take any

action that it can demonstrate would result in an undue financial or administrative

burden. An undue burden is a significant difficulty or expense.M15]

;

• Example of an undue burden: A person would like to visit city library when no

other customers are present. He requests that staff allow him in 30 minutes

before the building opens. This might be an undue burden for the library due to

limited staffing.

The requirements for showing an undue financial or administrative burden are

different for a state or local government agency and a private business.

State or Local Government Agency and Undue Burden

The head of a state or local government agency or his/her designee are the only ones

who can make the decision as to whether a reasonable modification is an undue

burden. The decision-maker must provide information in writing with the reasons why

the modification is an undue burden.

In determining whether financial and administrative burdens are excessive, all

financial resources used to fund the programs, services, or activities of the public

entity must be considered. If an action would result in an undue burden, th<

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local government agency must look for other ways to ensure that individuals with

disabilities receive the benefits and services of the program or activity.^

Private Business and Undue Burden

;

A private business must consider the following things to determine if an action or

reasonable modification would result in an undue burden.

1. The nature and cost of the reasonable modification.

2. The overall financial resources of the business making the reasonable

modifications; the number of people employed at the business; the effect on

expenses and resources of the business; legitimate safety requirements that

are necessary for safe operation, including crime prevention measures; or the

impact otherwise of the action upon the operation of the site.

3. For businesses with multiple sites, consideration is given to the degree of

geographic separateness and the administrative or financial relationship of the

sites that will make the modification more difficult or expensive.

4. If applicable, the overall financial resources, size, number of employees, and

type and location of facilities of the parent corporation or entity (if the

business involved in the reasonable modification is part of a larger business).

5. If applicable, an assessment is made of the parent corporation or entity's type

of operation, including the structure and functions of the workforce.^

Direct Threat

A state or local government agency or private business may not have to provide a

reasonable modification to the face mask policy if the individual with a disability

poses a direct threat to the health or safety of others.

A direct threat is a significant risk to the health or safety of others that cannot be

eliminated by a modification of policies, practices, or procedures, or by the provision

of auxiliary aids or services.IMIZ] The determination that a person poses a direct

threat to the health or safety of others may not be based on generalizations or

stereotypes about the effects of a particular disability. It must be based on an

individual assessment that considers the particular activity and the actual abilities

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and disabilities of the individual

;

‘

During a pandemic, state and local government agencies and businesses should use

the most up to date information from the Centers for Disease Control and Prevention

(CDC), the U.S. Department of Labor (DOL) Occupational Safety and Health

Administration (OSHA), and the state public health agencies. Because the pandemic

threat to health and safety will vary by region, you should consult your local public

health agency for guidance.^

To limit a direct threat from the COVID-19 pandemic, a state or local government

agency or private business may impose legitimate safety requirements necessary for

safe operation. However, these groups must ensure that their safety requirements are

based on real, specific risks, not on speculation, stereotypes, or generalizations about

individuals with disabilities.^^ These safety requirements must be consistent with

the ADA regulations about direct threat and legitimate safety requirements, and

consistent with advice from the CDC and public health authorities.

To limit a direct threat and have safety requirements in place to address the COVID19 pandemic, state and local government agencies and businesses may:

;

Develop policies and procedures for prompt identification and isolation of

people with symptoms of COVID-19, including employees and customers.

Offer face masks to employees and customers.

Enforce social distancing guidelines.

Inform customers about symptoms of COVID-19 and ask sick customers to

minimize contact with workers and other customers until they are healthy

again.

Post signs with COVID-19 information in places that sick customers may visit

(e.g., pharmacies, hospitals, public health agencies, grocery stores).

Include COVID-19 information in automated messages sent when messages

are sent to customers via phone messages, text, or email; and/or

Limit customers in-person access by customers to the buildings operated by a

state or local government agency or private business, as appropriate.

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[

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How should I respond to a request for a reasonable modification to the face mask

policy?

The U.S. Department of Justice (DOJ) issued two settlement agreements that provide

guidance on the reasonable modification decision-making process.^—I

;

1. A state or government agency should designate at least one person, and a

back-up, who are authorized to receive and review requests for reasonable

modifications. The decision-maker for a state or local government agency is

the head of the public agency or their designee.^ Although not required

private businesses are encouraged to designate a person to receive and review

requests for reasonable modifications and make decisions.

2. After receiving a request for a reasonable modification, talk with the individual

with a disability to learn why the person needs to modify the face mask policy

and to find a solution that meets ADA requirements. Decisions about

reasonable modifications should be made in a timely manner.

3. After the discussion, the government agency or private business may:

1. Agree to the request. In most cases, because the interaction is brief,

businesses such as department stores, grocery stores, and pharmacies

or government agencies such as the courthouse or drivers’ services,

will be able to agree to the request. Generally, state and local

governments may not ask for documentation of disability as the

interactions are brief and in doing so would amount to unequal

treatment of people with disabilities.

2. Deny the request. If a request for modifications is denied, a state or

local government agency or private business is encouraged to provide a

written statement as to why the request was denied, provide a copy to

the person with a disability, and keep a copy on file.

3. In some unique circumstances where the interaction is not brief (e.g., a

college or university that offers students extended residency in

dormitories), the school may ask students with non-obvious disabilities

for medical documentation about the person's disability that is narrowly

tailored and is absolutely necessary to:

1. Verify that the individual meets the ADA definition of disability

(i.e., has a physical or mental impairment that substantially limits

one or more major life activities); or

2. Describe the needed modification; or

3. Show the relationship between the individual’s disability and the

need for the requested modification.

;

English

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Medical Documentation

■

;

The U.S. Department of Justice (DOJ) nor other federal agencies with enforcement

authority have not provided specific guidance about whether a store can or cannot

ask for medical documentation about a person's inability to wear a face mask due to

a disability. Generally, guidance from the U.S. Department of Justice has not allowed

asking for documentation for accommodations at businesses where interactions are

brief, such as grocery stores or pharmacies. Some places such as medical offices or

hospitals may need the medical documentation because a person who is not wearing

a face mask may infect other people who are sick.

Best Practice Tip

Prepare a list of possible alternatives to a face mask/cloth face covering policy that

you can share with people with disabilities who request a reasonable modification to

your policy. See: Examples of reasonable modifications to a face mask policy for

examples of policy modifications.

Summary

As the COVID-19 pandemic continues, state and local government agencies and .

private businesses must make reasonable modifications to allow people with

disabilities to access the goods and services they offer. Following ADA requirements

for reasonable modifications within federal, state, and local health and safety

guidelines will allow you to keep employees and customers safe, reduce new

infections, and still provide goods and services to everyone.

;

Resources

For more about your rights under the Americans with Disabilities Act (ADA) and how

they apply to the coronavirus (C0VID-T9) pandemic: ADA. Disability & COVID-19

Resources (adacovidl 9.org)

For additional information on face coverings and the ADA:

;

• Fact Sheet: Healthcare & Face Coverings: Reducing Communication Barriers

for Deaf and Hard of Hearing Patients

Source: ADA National Network, Northwest ADA Center (adata.org)

• Fact Sheet: Face Coverings and Businesses: Balancing the ADA with f ’

H English

Health During COVID-19

https://adasoutheast.org/disability-issues/ada-and-face-inask-polldes/

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The ADA and Face Mask Policies > Southeast ADA Center

Source: Northwest ADA Center (nwadacenter.org)

• FAQs: The ADA. Small Business and Face Masks

Source: Great Plains ADA Center (gpadacenter.org)

• ADA Today Podcast: COVID-19. Face Mask Policies and ADA Title II and III

Source: Mid-Atlantic ADA Center (adainfo.org)

• Webinar Archive: Face Coverings and the ADA - Application of ADA Title III

Source: ADA Audio Webinar Series: Great Lakes ADA Center

(accessibilityonline.org)

;

ADA National Network

;

For questions and training on the Americans with Disabilities Act (ADA),

contact your regional ADA center at 1 -800-949-4232

or visit the national website: adata.org

- All calls are confidential We do not give medical or legal advice. [Refer

to: Disclaimer!

Citation

Williamson, P R., Morder, M. J., & Whaley, B. A. (2020). The ADA and Face Mask

Policies [Fact sheet]. Up to Date August 27, 2021. Retrieved

from https://www.adasoutheast.org/disability-issues/ada-and-face-maskpolicies.php

Endnotes

[U Centers for Disease Control and Prevention (CDC). (2021, July 27). When you've

been fully vaccinated - how to protect yourself and others. Retrieved July 28, 2021

from https://www.cdc.gov/coronavirus/2019-ncov/vaccines/fully-vaccinated.html

[2] World Health Organization (WHO). (2020, April 27). WHO Timeline - COVID-19.

Retrieved June 1,2020, from https://www.who.int/news-room/detail/27-04-2020who-timeline—covid-19

[3] Centers for Disease Control and Prevention (CDC). (2020, May 12). Clinical

Questions about COVID-19: Questions and Answers. Retrieved June 4, 2020, from

https://www.cdc.gOv/coronavirus/2019-ncov/hcp/faq.html#Transmission

[4] Centers for Disease Control and Prevention (CDC). (2021, August 13). Yj

to Masks. Retrieved August 13, 2021, from https://www.cdc.gov/coronavir

https://adasoutheast.org/disabllity-lssues/ada-and-face-mask-policies/

English

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The ADA and Face Mask Policies > Southeast ADA Center

ncov/prevent-getting-sick/about-face-coverings.html

[5] Centers for Disease Control and Prevention (CDC). (2020, May 22). About Cloth

Face Coverings. Retrieved June 2, 2020, from

https://www.cdc.gov/coronavirus/2019-ncov/prevent-getting-sick/about-facecoverings.html

[6] Centers for Disease Control and Prevention (CDC). (2020, May 22). About Cloth

Face Coverings. Retrieved June 2, 2020, from

https://www.cdc.gov/coronavirus/2019-ncov/prevent-getting-sick/about-facecoverings.html

[7] Centers for Disease Control and Prevention (CDC). (2020, May 22). About Cloth

Face Coverings. Retrieved June 2, 2020, from

https://www.cdc.gov/coronavirus/2019-ncov/prevent-getting-sick/about-face-

coverings.html

[8] Definition of claustrophobia, (n.d.). Retrieved May 29, 2020, from

https://www.dictionary.com/browse/claustrophobia?s=t

;

[9] Des Roches Rosa, S. (2020, May 11). Some autistic people can't tolerate cloth

face coverings. Here's how we're managing with our son. The Washington Post.

Retrieved from https://www.washingtonpost.eom/lifestyle/2020/05/11/someautistic-people-cant-tolerate-face-masks-heres-how-were-managing-with-our-son/

[10] ADA National Network, (n.d.) Health Care and the Americans with Disabilities

Act. Retrieved May 29,2020, from https://adata.org/factsheet/health-care-and-ada

[U] U.S. Department of Justice (DOJ). (2010). Americans with Disabilities Act Title II

regulations: nondiscrimination on the basis of disability in state and local

government services. Retrieved from

https://www.ada.gov/regs2010/titlelL2010/titlelL2010_regulations.htm

[12] U.S. Department of Justice (DOJ). (2017). Americans with Disabilities Act Title III

Regulations: nondiscrimination on the basis of disability in public accommodations

and commercial facilities. Retrieved from

https://www.ada.gov/regs2010/titlelL2010/titlelL2010_regulations.htm

[131 U.S. Department of Justice (DOJ). (2008, October 9). ADA Best Practices Tool Kit

for State and Local Governments - Chapter 1 ADA Basics: Statute and Ri

H English

https://adasoutheast.org/disability-issues/ada-and-face-mask-policies/

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The ADA and Face Mask Policies > Southeast ADA Center

Retrieved June 3,2020, from https://www.ada.gov/pcatoolkit/chap1toolkit.htm

• —39- :

;

[14] U.S. Department of Justice (DOJ). (2010) Americans with Disabilities Act Title ii

regulations: nondiscrimination on the basis of disability in state and locai

government services. Retrieved from

https://www.ada.gov/regs2010/titlelL2010/titlelL2010_regulations.htm

[15] U.S. Department of Justice (DOJ). (2017). Americans with Disabilities Act Title III

Regulations: nondiscrimination on the basis of disability in public accommodations

and commercial facilities. Retrieved from

https://www.ada.gov/regs2010/titlelll_2010/titlellL2010_regulations.htm

[16] U.S. Department of Justice (DOJ). (2010). Americans with Disabilities Act Title II

regulations: nondiscrimination on the basis of disability in state and local

government services. Retrieved from

https://www.ada.gov/regs2010/tit.lell_2010/titlell_2010_regulations.htm

[171 U.S. Department of Justice (DOJ). (2010). Americans with Disabilities Act Title III

Regulations: nondiscrimination on the basis of disability in public accommodations

and commercial facilities. Retrieved from

https://www.ada.gov/regs2010/titlelll_2010/titlelll_2010_regulations.htm

[181 U.S. Department of Justice (DOJ). (1993, November). The Americans with

Disabilities Act Title II Technical Assistance Manual Covering State and local

Government Programs and Services. Retrieved June 2, 2020, from

https://www.ada.gov/taman2.html

[191 U.S. Department of Justice (DOJ). (1993). Americans with Disabilities Act Title 111

Technical Assistance Manual - Covering Public Accommodations and Commercial

Facilities. Retrieved June 3, 2020, from https://www.ada.gov/taman3.html

[201 U.S. Equal Employment Opportunity Commission (EEOC). (2020, March

21). Pandemic Preparedness in the Workplace and the Americans with Disabilities

Act. Retrieved June 5, 2020, from https://www.eeoc.gov/laws/guidance/pandemicpreparedness-workplace-and-americans-disabilities-act

[211 U.S. Department of Justice (DOJ). (2010). Americans with Disabilities Act Title II

regulations: nondiscrimination on the basis of disability in state and local

government services. Retrieved from

https://www.ada.gov/regs2010/titlell_2010/titlelL2010_regulations.htm

English

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The ADA and Face Mask Policies > Southeast ADA Center

[221 U.S. Department of Justice (DOJ). (2017). Americans with Disabilities

Regulations: nondiscrimination on the basis of disability in public accommodations

and commercial facilities. Retrieved from

https://www.ada.gov/regs2010/titlelll_2010/titlelll_2010_regulations.htm

[231 U.S. Department of Justice (DOJ). (2016, July 28). Settlement Agreement

Between the United States of America and YMCA of the Triangle under the

Americans with Disabilities Act (DJ # 202-54-148). Retrieved June 3, 2020, from

https://www.ada.gov/ymca_triangle_sa.html

[241 U.S. Department of Justice (DOJ). (2010, November 22). Settlement Agreement

Between the United States of America and the District of Columbia under the

Americans with Disabilities Act. Retrieved June 3,2020, from

https://www.ada.gov/dc_shelter.htm

[251 U.S. Department of Justice (DOJ). (n.d.). Common Questions about Title II of the

Americans with Disabilities Act (Text filel. Retrieved June 3, 2020, from

https://www.ada.gov/pubs/t2qa.txt

[261 Markowitz, A. (2020, July 30). Does Your State Have a Mask Mandate Due to

Coronavirus?. Retrieved July 30, 2020, from https://www.aarp.org/health/heaithyliving/info-2020/states-mask-mandates-coronavirus.html

[271 U.S. Department of Justice (DOJ). (1992). The Americans with Disabiiities Act

Title li Technical Assistance Manuai. Retrieved August 18, 2020, from

https://www.ada.gov/taman2.html

[281 U.S. Department of Justice (DOJ). (2017). Americans with Disabilities Act Title III

Regulations § 36.104 Definitions. Retrieved August 18,2020, from

https://www.ada.gOv/regs2010/titlelll_2010/titlelll_2010_regulations.htm#a104

[291 U.S. District Court for the Western District of Pennsylvania. (2020, October

23). Pletcher v. Giant Eagle Inc.. Civil Action No. 2:20-754 (W.D. Pa. Oct. 23, 2020).

;

Retrieved from https://casetext.com/case/pletcher-v-giant-eagle-inc

[301 Centers for Disease Control and Prevention (CDC). (2021, January

29). Requirement for Persons to Wear Masks While on Conveyances and at

Transportation Hubs [PDF. 11 pagesl. Order under Section 361 of the Public Health

Service Act (42 U.S.C. 264) and 42 Code of Federal Regulations 70.2, 71.31 (b),

English

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The ADA and Face Mask Policies > Southeast ADA Center

71.32(b). Retrieved January 30, 2021 from

https://www.cdc.gov/quarantine/pdf/Mask-Order-CDC_GMTF_01-29-21-p.pdf

;

[31] The White House. (2021, January 201. Executive Order on Protecting the Federal

Workforce and Requiring Mask-Wearing. Retrieved January 21,2021 from

https://www.whitehouse.gov/briefmg-room/presidentialactions/2021/01/20/executive-order-protecting-the-federal-workforce-and-requiringmask-wearing/

[32] Centers for Disease Control and Prevention (CDC). (n.d.). CPC COVID Data

Tracker. Retrieved July 28,2021 from https://covid.cdc.gov/covid-datatracker/#county-view

[33] American Association of Retired Persons (AARP). (2021, August 27). State-bvState Guide to Face Mask Requirements. Retrieved August 27, 2021 from

https://www.aarp.org/health/healthy-living/info-2020/states-mask-mandatescoronavirus.html

[341 Transportation Security Administration (TSA). (2021, April 30). TSA extends face

mask requirement at airports and throughout the transportation network. Retrieved

April 03, 2021 from https://www.tsa.gov/news/press/releases/2021/04/30/tsaextends-face-mask-requirement-airports-and-throughout

[35] Centers for Disease Control and Prevention (CDC). (2021, May 13). When You've

Been Fully Vaccinated: How to Protect Yourself and Others. Retrieved May 13, 2021

from https://www.cdc.gov/coronavirus/2019-ncov/vaccines/fully-vaccinated.html

[36] Transportation Security Administration (TSA). (2021, May 14). Joint Statement:

Mask Mandate On Public Transportation Remains in Effect. Retrieved May 14, 2021

from https://www.tsa.gov/news/press/statements/2021/05/14/joint-statementmask-mandate-public-transportation-remains-effect

[371 Centers for Disease Control and Prevention (CDC). (2021, June 10). Requirement

for Face Masks on Public Transportation Conveyances and at Transportation Hubs.

Retrieved June 10, 2021 from https://www.cdc.gov/coronavirus/2019ncov/travelers/face-masks-public-transportation.html

[381 Centers for Disease Control and Prevention (CDC). (2021, July 9). Guidance for

C0VID-19 Prevention in K-12 Schools. Retrieved July 9, 2021 from

English

https://adasoutheast.org/disability-issues/ada-and-face-tnask-policies/

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The ADA and Face Mask Policies > Southeast ADA Center

https://www.cdc.gov/coronavirus/2019-ncov/community/schools-childcare/k-12-

guidance.html

[391 Centers for Disease Control and Prevention (CDC). (2021, July 9). Prevention

strategies and school in-person learning - Science Brief: Transmission of SARSCoV-2 in K-12 Schools and Early Care and Education Programs - Updated. Retrieved

July 19, 2021 from https://www.cdc.gov/coronavirus/2019-ncov/science/sciencebriefs/transmission_k_12_schools.html#in-person

;

[40] American Academy of Pediatrics (AAP). (2021, July 19). AAP COVID-19 Guidance

for Safe Schools.. Retrieved July 19, 2021 from

https://services.aap.org/en/pages/2019-novel-coronavirus-covid-19infections/clinical-guidance/covid-19-planning-considerations-return-to-in-person-

education-in-schools/

[411 Superior Court of the State of California, County of San Francisco. (2020, July

29). Bunn v. Nike Inc. [PDF. 13 pagesl. CGC20585683. Retrieved July 19, 2021 from

https://www.classaction.org/media/bunn-v-nike-inc.pdf

[421 Centers for Disease Control and Prevention. (2021, July 27). Interim public health

recommendations for fully vaccinated people. Retrieved July 28, 2021 from

https://www.cdc.gov/coronavirus/2019-ncov/vaccines/fully-vaccinatedguidance.html

[431 Centers for Disease Control and Prevention. (2021, July 27). Delta Variant: What

We Know About the Science. Retrieved August 12, 2021 from

https://www.cdc.gov/coronavirus/2019-ncov/variants/delta-variant.htmll

[441 Centers for Disease Control and Prevention. (2021, August 4). Families with

Vaccinated and Unvaccinated Members. Retrieved August 12, 2021 from

https://www.cdc.gov/coronavirus/2019-ncov/your-health/about-covid-19/caring-forchildren/families.html

;

[451 Centers for Disease Control and Prevention. (2021, July 14). CDC calls on

Americans to wear masks to prevent COVID-19 spread. Retrieved August 12, 2021

from https://www.cdc.gov/media/releases/2020/p0714-americans-to-wearmasks.html

[46] Centers for Disease Control and Prevention. (2021, August 20). Domestic Travel

Purina COVID-19 . Retrieved August 20, 2021 from

English

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The ADA and Face Mask Policies > Southeast ADA Center

https://www.cdc.gov/coronavirus/2019-ncov/travelers/travel-during-covid19TTfrfilJ!'

-43—

[471 Centers for Disease Control and Prevention. (2021, August 20). International

Travel During COVIP-19 . Retrieved August 20, 2021 from

https://www.cdc.gov/coronavirus/2019-ncov/travelers/international-travel-duringcovid19.html

[481 Transportation Security Administration (TSA). (2021, August 20). TSA extends

face mask requirement through January 18.2022 . Retrieved August 20, 2021 from

https://www.tsa.gov/news/press/releases/2021/08/20/tsa-extends-face-maskrequirement-through-january-18-2022

[49] Justia U.S. Case Law Federal Courts of Appeals Sixth Circuit 2021. (2021, August

23). Resurrection School v, Hertei. No, 20-2256 f6th Cir. 2021T Retrieved August 27,

2021 from https://law.justia.com/cases/federal/appellate-courts/ca6/20-2256/202256-2021-08-23.html

;

Disclaimer:

These materials do not constitute legal advice and should not be relied upon in any

individual case. Please consult an attorney licensed in your state for legal advice

and/or representation. These materials were prepared by the legal research staff of

the Burton Blatt Institute (BBI) at Syracuse University in partnership with the

Southeast ADA Center to highlight legal and policy developments relevant to civil

rights protections and the impact of court decisions in the Southeast Region under

the Americans with Disabilities Act (ADA). These materials are based on federal

disability rights laws and court decisions in effect at the time of publication. Federal

and state disability rights law can change at any time. In addition, state and local

laws and regulations may provide different or additional protections. Materials are

intended solely as informal guidance, and are neither a determination of your legal

rights nor responsibilities under the ADA or other federal, state, and local laws, nor

binding on any agency with enforcement responsibility under the ADA. The accuracy

of any information contained herein is not warranted. Any links to external websites

are provided as a courtesy and are not intended to nor do they constitute an

endorsement of the linked materials.

I m English

https://adasoutheast.org/disability-issues/ada-and-face-mask-policies/

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The ADA and Face Mask Policies > Southeast ADA Center

Contact* Terms of Use ■ Disclaimer - Accessibility

Funded by NIDiLRR Grant ^ODPAUOOQG-01-00.

Period WordPress Thame by f.ornpais The ru;*.

https://adasoutheast.org/disability-issues/ada-and-face-mask-policies/

English

23/23

1/21/2021

NYU Langone Health MyChart - Letters

Name: Aaron Abadi | DOB:

| MRN: 9141633 | POP: Yelena Karasina. MD

Letter Details

i NYU Langone

Health

Yelena Karasina, MD

NYU LANGONE AMBULATORY CARE WEST SIDE

355 WEST 52NDST

NEW YORK NY 10019-6239

Phone: 646-754-2100

Fax: 646-754-2148

December 3, 2020

Patient:

Mr. Aaron Abadi

Date of Birth:

Date of Visit:

To Whom it May Concern:

Mr. Aaron Abadi is suffering from extreme sensitivity to touch,mostly in the area of his

head.For this reason he is unable to wear face mask or face shield,and should not be

required to do so.

He has already recovered from COVID.and is not contagious.

Sincerely,

Yelena Karasina, MD

This letter was initially viewed by Aaron Abadi at 12/7/2020 9:41 AM.

https ://mychart. nyulmc.org/mychart/inside. asp?mode=letters&id=1

1/1

AFTER VISIT SUMMARY

Aaron Abadi DoB:

■

.NYU Langone

v Health

S/6/2021 3:30 PM 9 Preston Robert Tisch Center for Men’s Health 646-7S4-2000

1 hStXUCtlOnS from (an iostbader; Mil

Today's medication changes

Accurate as of May 6, 2021 9:17 PM,

Review your updated medication list below.

Pick up these medications at CVS/pharmacy #2716 Cor of Nassau 123 Fulton St, New York, NY

10038-2716 212-233-502.1212-233-7153

esc

^HFpayment per fill: $0

Address:

Phone:

129 Fulton St, New York NY 10038-2716

212-233-5021

tabs ordered today

URINALYSIS (NO CULTURE) WITH REFLEX TO MICROSCOPY

Please complete by 5/6/2021

-S Return in about 6 months

(around 11/6/2021) for repeat labs, review meds, renew metis, follow up symptoms.

U-ijr.

‘---xT f".. !

. ! . 1 ii'\ F . A5.?A “

IP '• S-ipy

" s'*:?'

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Today's Visit

Aaron Abadi (MRN: 9141633) (CSN: 828823283) • Printed by [LUSTBI01] at 5/6/21 9:17 PM

Page 1 of 5 £%3$G

You saw Ian Lustbader, MD on Thursday May 6, 2021 for:

The following issues were addressed:

Sensory integration disorder

/•20 Blood Pressure

r's

W 158/93

l|ir 28.05

hi:

Temperature tOial}

f 98.3 °F

'V^

BMi

Pulse

ITts) Weight

211 lb 10.3 oz

fX 3 Height

IjV 6' 0.84"

Oxygen Saturation

M 98%

® Immunizations Given

What's Next

nil

stun

New Patient Appointment with John G Zampella, MD

Wednesday July 26 1:30 PM

Please arrive 1S minutes prior to your appointment time.

Bring your insurance card and photo identification.

Bring your MD referral/pre-certification (if applicable).

Bring a copy of your medical records, recent test results (including

labs, X-ray, CT, etc,) that relate to the reason for your visit.

Bring the name and phone number of your primary and referring MD.

Be prepared to pay any co-payments or patient responsible balances

at the time of your appointment.

Preston Robert Tisch Center for Men's

Health

5SS Madison Ave

New York NY 10022-3301

646-7S4-2000

Aaron Abadi (MRN: 9141633) (CSN: 828823283) ♦ Printed by [LUSTBI0T] at 5/6/21 9:17 PM

Page 2 of S

St: P

Physical with Yelena Karasina, MD

Wednesday September 1 11:00 AM

Arrive 15 minutes prior to appointment.

oct

Follow Up Appointment with Ian Lustbader; MD

Wednesday October 27 4:30 PM

Arrive 15 minutes prior to appointment.

2021

2.021

NYU Langone Ambulatory Care West

Side

355 West 52nd St

New York NY 10019-6239

646-754-2100

Preston Robert Tisch Center for Men's

Health

555 Madison Ave

New York NY 10022-3301

646-754-2000

NYU Langone Health App & MyChart

• Download the NYU Langone Health app on the App Store or Google Play to stay connected to your care

anytime and anywhere.

• Sign in with your NYU Langone Health MyChart account username and password.

• You can schedule appointments, view test results, request prescription refills, send secure messages to your

providers, have a virtual urgent care visit, and more.

Aaron Abadi (MRN: 9141633) (CSN: 828823283) • Printed by [LUSTBI01] at 5/6/21 9:17 PM

Page 3 of 5 Efaic

Your Medication List asofMay6,202i 9:17pm

® Foryour privacy, any medications your clinician marked as private are not included in this list. This message

appears even if the list is complete. If you have any questions about a medication you don't see here, contact your

doctor. Always use your most recent med list.

STMT

rir.

V 'i

Access to Clinical Notes and Test Results

At NYU Langone Health, we believe that sharing information supports patients taking an active role in their health. In

support of this, clinical notes and test results are made available to patients in MyChart and the NYU Langone Health App,

as soon as they are available. This is in accordance with the 21 st Century Cures Act, which is intended to give patients and

their healthcare providers secure access to health information, (www.healthitgov/cu res rule)

This means that a patient may see test results before their health care provider does. If you do access your test results

right away, please keep in mind that some results may be hard to interpret without guidance from a health care

professional. All results will be reviewed by members of your care team. They will continue to follow-up with you as they

have done in the past

Allergies as of 5/6/2021

No Known Allergies

If you feel that any of the information in this summary is inaccurate, please talk with your healthcare provider.

Aaron Abadi (MRN: 9141633) (CSN: 828823283) • Printed by [LUSTBI01J at 5/6/21 9:17 PM

Page 4 of 5 ftyirt

Information About Medication Safety

It is important to keep an updated record of the medications you are taking, and to bring this updated list of medications

every time you visit your Health Care Provider and when you come to the hospital. We want to help you in managing your

medications safely after your visit or discharge. This includes the potential side effects of your medications. If you have

any questions regarding the medications you are taking, please speak to your Health Care Provider or Pharmacist.

Have questions about your bills?

Our physician and hospital customer service representatives are available to answer any billing questions: https://

nyulangone.org/insurance-billing-financial-assistance

Physician Billing: 1 - 877 - 648 - 2964

Hospital Billing: 1 - 800 - 237 - 6977

Finding a Physician Within NYU Langone Health

As one of the nation's premier academic medical centers, NYU Langone Health is devoted to excellence in patient care,

education, and research. We are proud that our care team includes leading specialists for every condition.

Should you need assistance finding a physician or service, please visit us on our website at https://nyulangone.org/

doctors.

To reach us by phone:

NYU Langone Physician Referral Services - (855) 314-2978

NYU Langone Orthopedic Hospital - (888) 453-3627

Family Health Centers at NYU Langone - (718) 630-7942

Additional resources include:

National Suicide Prevention Hotline - (800) 273-8255

NYC Suicide Hotline - (888) 692-9355

Aaron Abadi (MRN: 9141633) (CSN: 828823283) • Printed by [LUSTBI01] at 5/6/21 9:17 PM

Page 5 of 5 Epic

AIRLINE LIST OF RESPONSES OR VIOLATIONS;

airline

Disabled can flv without a mask?

Demands

In violation of

Aer lingus

YES with doctor’s letter

None

Aeroflot

Nope

Denied Access

ACAA, § 382.19

None

Aerolineas Argentina YES with doctor's letter

Air Canada

Denied Access

Medical form that passenger is

with complicated requirements, maybe medically able to fly

Air China

Nope

Denied Access

ACAA, § 382.19

Air Europa

YES with doctor's letter

None

Air France

YES with doctor's letter

None

Air India

Nope

Denied Access

ACAA, § 382.19

Air New Zealand

YES with doctor's letter

None

Air Serbia

YES with doctor's letter

None

Air Tahiti Nui

with complicated requirements, maybe updating dr letter

Air Transat

YES with doctor's letter

None

Alaska airlines

Questionable

no advance confirmation if can fly

§ 382.33 (a)

Allegiant Air

Nope

Denied Access

ACAA, § 382.19

American Airlines

Nope

Denied Access

ACAA, § 382.19

ANA AH Nippon Airv YES with doctor's letter

None

Asiana airlines

Nope

Denied Access

ACAA. § 382.19

Austrian Airlines

Medical form that passenger is

with complicated requirements, maybe medically able to fly and C'ovid test

AYianca

Nope

Denied Access

ACAA, § 382.1 a

Azerbaijan airlines

Nope

Denied Access

ACAA. § 382,19

Azul Brazilian airlim Nope

Denied Access

ACAA, § 382.19

British Air

Nope

Denied Access

ACAA. § 382.19

Brussels airways

YES with doctor's letter

None

Cathay Pacific airwa; Nope

Denied Access

ACAA, § 382.19

China Eastern Airlin Nope

Denied Access

ACAA, § 382.19

China Southern Airli Nope

Denied Access

ACAA, S 382.19

COPA Compania Pai YES with doctor's letter

None

Delta

Questionable

no advance confirmation if can fly

§ 382.33 (a)

Egyptair

Nope

Denied Access

ACAA, § 382.19

ELAL

YES with doctor’s letter

None

Emirates

Nope

Denied Access

ACAA, § 382.19

Ethiopian Airlines

YES with doctor's letter

None

Aeromexico

Nope

ACAA, § 382.19

ACAA, § 382.23 (a).

§ 382.33

§ 382.33 & 382.23 (a)

AIRLINE LIST OF RESPONSES OR VIOLATIONS;

airline

Disabled can flv without a mask?

Demands

In violation of

Etihad

Nope

Denied Access

ACAA, § 382.19

Eva Airways

Nope

Denied Access

ACAA, § 382.19

Finnair

Medical form that passenger is

with complicated requirements, maybe medically able to fly and Covid test

Frontier

Nope

Hawaiian Airlines

Questionable

Denied Access

§ 382.33 & 382.23 (a)

ACAA, § 382.19

Iberia Airlines

no advance confirmation if can fly

Medical form that passenger is

medically able to fly & advance

with complicated requirements, maybe notice

Icelandair

YES with doctor's letter

None

Japan Air Lines Co

YES with doctor's letter

None

JetBlue

Nope

Denied Access

ACAA, § 382.19

Kenya Airways

Nope

Denied Access

ACAA, § 382-19

KLM

YES with doctor's letter

None

Korean Air Lines

Nope

Denied Access

ACAA, § 382.19

Kuwait Airways

Nope

Denied Access

ACAA, § 382.19

LATAM

Medical form that passenger is

with complicated requirements, maybe medically able to fly

Lot Polish Airlines

Nope

Denied Access

ACAA, § 382.19

Mokulele Airlines

Nope

Denied Access

ACAA. 8 382.19

Philippine Airlines

Nope

Denied Access

ACAA, § 382.19

Porter Airlines

Medical form chat passenger is

with complicated requirements, maybe medically able to fly

ACAA. § 382.23 (a).

Qatar Airways

Medical form that passenger is

with complicated requirements, maybe medically able to fly

ACAA. § 382.23 (a).

§ 382.33 (a)

§ 382.25 & 382.27 (a) & 382.23(a)

ACAA, § 382.23 (a).

Denied Access

ACAA, § 382.19

Medical form that passenger is

medically able to fly & Vaccine card

§ 382,33 & 382.23 (a)

Royal Jordanian Air! with complicated requirements, maybe & negative Covid Test

.Royal Air Maroc

Nope

SAS

Medical form that passenger is

with complicated requirements, maybe medically able to fly

Silver Airways

Nope

Denied Access

ACAA, § 382.19

Singapore Airlines

Nope

Denied Access

ACAA, § 382.19

Southwest

Nope

Denied Access

ACAA, § 382.19

Spirit Airlines

Nope

Denied Access

ACAA, § 382.19

medically able to fly & advance

notice & negative Covid Test &

Sun Country Airline; with complicated requirements, maybe more

Swiss Air

Medical form that passenger is

with complicated requirements, maybe medically able to fly and Covid test

ACAA, § 382.23 (a).

Most sections

§ 382.33 & 382.23 (a)

AIRLINE LIST OF RESPONSES OR VIOLATIONS;

Demands

airline

Disabled can fly without a mask?

TAP

Medical form that passenger is

with complicated requirements, maybe medically able to fly and Covid test

Turkish Airlines

Nope

Denied Access

ACAA, § 382.19

United

Nope

Denied Access

ACAA, § 382.19

Virgin Atlantic

YES with doctor's letter

None

Viva Air

Nope

Denied Access

ACAA, § 382.19

Volaris Airlines

Nope

Denied Access

ACAA, § 382.19

In violation of

§ 382.33 & 382.23 (a)

U.S. Department of

Transportation

GENERAL COUNSEL

1200 New Jersey Ave., S.E.

Washington, DC 20590

Office of the Secretary

of Transportation

January 25, 2021

Mr. Aaron Abadi

82 Nassau Street, 140

New York, NY 10038

Dear Mr. Abadi:

This letter is in further reference to your disability complaint regarding American Airlines. We were sorry

to hear of the incident and appreciate the opportunity to advise you of the outcome of our

investigation. Enclosed you will find an Investigation Summary Sheet that details the results of our

investigation, which was based on the Air Carrier Access Act (ACAA), 49 U.S.C. Section 41705, and our

implementing rule, 14 CFR Part 382.

In particular, the Investigation Summary Sheet identifies the applicable section of 14 CFR Part 382,

provides a brief summary of that section and explains this office’s view on whether the carrier has

violated the ACAA and 14 CFR Part 382. If your complaint raises more than one disability issue, an

additional Investigation Summary Sheet has been attached to address each issue.

If we believe the complained of incident involves a violation, the Investigation Summary Sheet indicates

the action that we plan to take. We will either pursue formal enforcement action or by copy of this letter

notify the airline specified in your complaint of our determination and warn it that any similar incidents

could lead to formal enforcement action. Generally, we will pursue enforcement action on the basis of a

number of complaints from which we may infer a pattern or practice of discrimination. However, where

one or a few complaints describe particularly egregious conduct on the part of a carrier and those

complaints are supported by adequate evidence, we will pursue enforcement action as our resources

permit. If we decide to seek enforcement action against the airline, your complaint will be among those

considered in the context of this action, which may lead to the issuance of a cease and desist order and

to the assessment of civil penalties. In the event that this enforcement action leads to litigation, it is

possible that we may need sworn statements or witnesses for a hearing. We will advise you if, in fact,

we need your further help.

For your information, in an enforcement case, the U.S. Department of Transportation is limited to issuing

cease and desist orders and assessing civil penalties not to exceed $34,174 per violation. Such action

can only be accomplished through settlements or formal hearings before administrative law judges. We

cannot order compensation for aggrieved parties. To obtain a personal monetary award of damages, a

complainant would have to file a private legal action that may be based on private contract rights or on

civil rights statutes that provide for a private right of action.

If we have insufficient evidence or it appears that the airline specified in your complaint has not violated

the ACAA, we will not pursue enforcement action. Notwithstanding our decision not to pursue

enforcement action, however, private legal action may be pursued in the courts based on private contract

rights or on civil rights statutes that provide for a private right of action and, in such a proceeding,

monetary damages may be sought.

Regardless of whether the airline has been determined to have violated the ACAA, we have entered your

complaint in our computerized industry monitoring system, and the carrier’s ACAA complaint totals in our

monthly Air Travel Consumer Report reflect your complaint. Our monthly report is made available to the

aviation industry, the news media and the general public so that both consumers and air travel

companies can compare the overall complaint records of individual airlines, as well as the number of

disability complaints filed against particular carriers. This system also serves as a basis for rulemaking,

legislation, and research.

Moreover, we also routinely monitor our complaint records to determine the extent to which carriers are

in compliance with the ACAA and to track trends or spot areas of concern which we feel may warrant

further action. This ongoing process also enables us to ensure prompt corrective action whenever we

determine that an airline's policies or procedures are not in compliance with our ACAA regulations. Your

complaint will be among those considered in the context of this overall process.

I hope this further information is useful. Thank you again for taking the time to contact us.

Sincerely,

Livaughn Chapman, Jr.

Deputy Assistant General Counsel

for Aviation Consumer Protection

By: Robert Gorman

Is/

Senior Attorney

Enclosures

cc: American Airlines

GENERAL COUNSEL

U.S. Department of

Transportation

Office of the Secretary

of Transportation

1200 New Jersey Ave., S.E.

Washington, DC 20590

INVESTIGATION SUMMARY SHEET

Case Number:

AT2019010090

Complainant Title:

MR.

Name:

AARON ABADI

Address:

82 NASSAU STREET, 140

NEW YORK, NY 10038

Passenger(s):

Aaron Abadi

Airline:

American Airlines

Travel Date(s):

1/28/2019

Flight Number(s):

AA 1638

City Pair:

RSW-CLT

Location of Incident:

Charlotte Internationa! Airport

Complaint/Issue:

Preboarding

Applicable Section of

14 CFR Part 382:

382.93

Section Summary:

382.93

As a carrier, you must offer preboarding to passengers with a disability

who self-identify at the gate as needing additional time or assistance to

board, stow accessibility equipment, or be seated.

Rule Violated?

Yes

Remarks:

In the January 31, 2019, complaint against American Airlines

(American), Mr. Abadi states that he did not receive preboarding

assistance. Mr. Abadi describes that he has a knee disability and was

provided wheelchair assistance to the departure gate. Mr. Abadi

explains that he requested preboarding at the counter before boarding

began for his flight. He states that he was advised that he could board

any time after group one. Mr. Abadi states that he complained to a

customer service agent who initially advised him as the counter agent

did that he could board after group one. However, he states that the

customer service agent later stated otherwise. He concludes that a

boarding agent assisted him to board once the aisle was clear onboard.

In its response dated February 28, 2019, American stated that

Mr. Abadi should have been provided the opportunity to pre-board when

he approached its counter agent. American stated that it was in

violation of Part 382 in this instance.

Pursuant to Section 382.93, carriers must offer preboarding to

passengers with a disability who self-identify at the gate as needing

additional time or assistance to board, stow accessibility equipment, or

be seated.

Here, based on the information provided and American’s own

admission, we find that American violated Part 382 in this

case. Mr. Abadi requested preboarding due to his disability but it was

not provided. If we decide to seek enforcement action against American

with respect to this issue, this complaint will be among those

considered, which may lead to the issuance of a cease and desist order

and the assessment of civil penalties. The carrier is warned in this

instance.

U.S. Department of

Transportation

Office of the Secretary

of Transportation

GENERAL COUNSEL

1200 New Jersey Ave . S,E

Washington, DC 20590

November 22,2021

Dear Mr

This letter is in further reference to your disability complaint regarding Southwest Airlines. We were sorry

to hear of the incident and appreciate the opportunity to advise you of the outcome of our

investigation. Enclosed you will find an investigation Summary Sheet that details the results of our

investigation, which was based on the Air Carrier Access Act (ACAA), 49 U.S.C. Section 41705. and our

implementing rule. 14 CFR Part 382.

In particular, the Investigation Summary Sheet Identifies the applicable section of 14 CFR Part 382.

provides a brief summary of that section and explains this office's view on whether the carrier has

violated the ACAA and 14 CFR Part 382. If your complaint raises more than one disability issue, an

additional Investigation Summary Sheet has been attached to address each issue.

if we believe the complained of incident involves a violation, the Investigation Summary Sheet indicates

the action that we plan to take. We will either pursue formal enforcement action or by copy of this letter

notify the airline specified in yoiit complain! of our determination and warn it that any similar incidents

could lead to formal enforcement action. Generally, we will pursue enforcement action on the basis of a

number of complaints from which we may infer a pattern or practice of discrimination. However, where

one or a few complaints describe particularly egregious conduct on the part of a carrier and those

complaints are supported by adequate evidence, we will pursue enforcement action as our resources

permit. If we decide to seek enforcement action againsl the airline, your complaint will be among those

considered in the context of this action, which may lead to the issuance of a cease and desist order and

to the assessment of civil penalties. In the even! that this enforcement action leads to litigation, it is

possible that we may need sworn statements or witnesses for a hearing. We will advise you if, in fact,

we need your further help.

For your information, in an enforcement case, the U .S. Department of Transportation is limited to issuing

cease and desist orders and assessing civil penalties not lo exceed $34.174 per violation. Such action

can only be accomplished through settlements or forma! hearings before administrative law judges. We

cannot order compensation for aggrieved parties. To obtain a personal monetary award of damages, a

complainant would have to file a private legal action that may be based on private contract rights or on

civil nghts statutes that provide for a private right of action.

If we have insufficient evidence or it appears that the airline specified in your complaint has not violated

the ACAA. we will hot pursue enforcement action. Notwithstanding our decision not to pursue

enforcement action, however, private legal action may be pursued in the courts based on private contract

rights or on civil rights statutes that provide for a private right of action and, in such a proceeding,

monetary damages may be sought.

Regardless of whether toe airline has been determined to have violated toe ACAA, we have entered your

complaint In our computerized industry monitoring system, and the carriers ACAA complaint totals In our

monthly Air Travel Consumer Report reflect your complaint. Our monthly report is made available to the

aviation industry, the news media and the general public so that both consumers and air travel

companies can compare the overall complaint records of individual airlines, as well as the number of

disability complaints filed against particular carriers. This system also serves as a basis for rulemaking,

legislation, and research.

Moreover, we also routinely monitor our complaint records to determine the extent to which carriers are

in compliance with the ACAA and to track trends or spot areas of concern which we feel may warrant

further action. This ongoing process also enables us to ensure prompt corrective action whenever we

determine that an airline's policies or procedures are not In compliance with our ACAA regulations, Your

complaint will be among those considered in the context of this overall process.

I hope this further information is useful. Thank you again for taking the time to contact us.

Sincerely,

Livaughn Chapman; Jr.

Deputy Assistant General Counsel

for Aviation Consumer Protection

/si

By; Stuart Hindman

Senior Trial Attorney

Enclosures

cc; Southwest Airlines

GENERAL COUNSEL

U S- Department of

1200 New Jersey A«e., S.E■Washington, DC 205<KI

Transportation

Office of the Secretary

of Transportation

INVESTIGATION SUMMARY SHEET

Case Number:

Complainant Title:

Name:

Address:

Passengers):

Airtins:

Southwest -Airlines

Travel Datefsj:

Not Applicable

Flight Number(s):

Not Applicable

City Pair:

Richmond to Tampa

Location of Incident:

On board flights

Complaint/issue:

f allure to provide an acconimodaiton to a passenger with a disability

with respect to the carrier's mask policy.

Applicable Section or

3S2.19

I4CFR Part 382:

Section Summary:

(a) As a carrier, you most not refuse to provide transportation to a

passenger with a disability on the basis; of His or her disabihty, except as

specificaMy permittee by this pan:.

(Li) You must not refuse to provide transportation to a passenger with a

disability because the person's disability results in appearance or

involuntary behavior that may offend, annoy, or inconvenience

crewmembers or other passengers.

basis of safety, as provided m 49 U.S.C, 44902 m 1.4 crR 121,533, or to

any passenger whose carriage would violate KAA or TSA requirements or

applicable requirements of a foreign government.

(1) You can determine that there is a.disability-related safety basis for

refusing to provide transportation to a passenger with a disability if you

are able to demonstrate that the passenger poses a direct threat (see

definition in §382.3), Jn determining whether an individual poses a

direct: threat, you must make an individualized assessment, based on

reasonable judgment that relies on current: medical knowledge or on the

best available object/ve evidence, to ascertain:

(5) The nature, duration, and severity of the risk;

(ii) The probability that the potential harm to the health and safety of

others win actually occur; and

(Hi) whether reasonable modifications of policies, practices, or

procedures will mitigate the risk.

(2) If you determine, that the passenger docs pose a direct threat, you

must select the least restrictive response from the point of view of the

passenger, consistent with protecting the health and safety of

others. For example, you must not refuse transportation to the

passenger if you can protect the health and safety of others by means

short of a refusal.

(3) In exercising this authority, you must not act inconsistently with the

provisions of this part.

(4) If your actions are inconsistent with any of the provisions of this

part, you are subject, to enforcement action under Subpart K of this

part.

Rule Violated?

Yes

Remarks:

Mr.

states that he has a disability that prevents him from

wearing a mask. Mr.

states that he was looking to travel to

Tamoa and he reached out to Southwest Airlines (Southwest) fur

information regarding a mask exemption. Mr.

was informed

that anyone not wearing mask wili not be allowed to travel on

Southwest.

in the carrier's September 2i, 2020, reply to Mr,

Southwest confirms Mr.

allegation that it passenger who

can not or refuse to wear a mask will not be allowed to travel on

Southwest.

On February 5, >021, the Department of Transportation’s Office of

Aviation Consumer Protection (OACP) issued a notice titled "Notice of

Enforcement Policy: Accommodation by Carriers of Persons with

Disabilities Who Are Unable to Wear Masks While on Commercial

Aircraft." The notice reminds U.S. and foreign air carriers of their legal

obligation to accommodate the needs of passengers with disabilities

when developing procedures to implement the Federal mandate on the

use of masks to mitigate the public health risks associated with COVID19. The notice makes clear that airline policies that expressly allow no

exceptions to the mask requirement other than for children under the

age of two violate the Air Carrier Access Act,

The Air Carrier Access Act and its implementing regulation, 14 CFR Part.

382 (Pari 382). require airlines to make reasonable accommodations,

based on individualized assessments, for passengers with disabilities

who are unable to wear or safely wear a mask due to their disabilities.

Jt would be a violation of the ACAA and Part 382 for an airline to have

an exemption for children under 2 on the basis that children that: age

cannot wear or safely wear a mask and not have an exemption for the

limited number of individuals with disabilities who similarly cannot wear

or safely wear a mask when there is no evidence that these individuals

with disabilities would pose a greater heath risk to others.

Southwest’s mask policy that was in place at the time Mr. ________

planned to have* failed to provide an exemption for passengers with

disabilities who cannot wear or safely wear a mask due to their

disabilities. As a resuit, Southwest did not conduct an individualized

assessment, to determine whether Mr.

Icould not wear or

safely wear a mask due to his disability and whether a reasonable

accommodation could be made that would permit Mr.

to fly

safely without a mask. Therefore, we find that Southwest violated the

ACAA and Part. 382 in this instance.

Since the issuance of the notice, OACP has exercised its prosecutorial

discretion and provided the airlines 45 days from the date of the

Enforcement Notice to come into compliance with its obligation under

the ACAA and Part 382 by amending their mask polices to provide

reasonable accommodations to persons with disabilities who arc unable

to wear masks or to wear masks safely, so long as the airline

demonstrates that it began the process of compliance as soon as this

notice was issued. A copy of OACP's Enforcement Notice is available on

the Department's website at:

hHrp«://www.tranfiporiratio«.!30v/?»ircori*;umer/maske-riotice-of--

enforcement-policy. We note that since the time of this incident,

Southwest has informed OACP that it has amended its mask policy to

comply with the ACAA and Part 382.

U S. Department of

GENERAL COUNSEL

Transportation

Office of the Secretory

of Transportation

1200 New Jersey Ave . S £

Washington, DC 20590

November 12, 2021

Dear Mr

This tetter is in further reference to your disability complaint regarding JetBlue Airways. We were sorry to

hear of the incident and appreciate the opportunity to advise you of the outcome of our

investigation. Enclosed you will find an investigation Summary Sheet that details the results of our

investigation, which was based on the Air Carrier Access Act (ACAA), 49 US.C. Section 41705, and our

implementing rule, 14 CFR Part 382.

In particular, the Investigation Summary Sheet identifies the applicable section of 14 CFR Part 382,

provides a brief summary of that section and explains this office’s view on whether the carrier has

violated the ACAA and 14 CFR Part 382. If your complaint raises more than one disability issue, an

additional Investigation Summary Sheet has been attached to address each issue.

If we believe the complained of incident involves a violation, the Investigation Summary Sheet indicates

the action mat we plan to lake. We will either pursue formal enforcement action or by copy of this letter

notify the airline specified in your complaint of our determination and warn it that any similar incidents

could lead lo formal enforcement action. Generally, we will pursue enforcement action on the basis of a

number of complaints from which we may infer a pattern or practice of discrimination. However, where

one or a few complaints describe particularly egregious conduct on the pari of a carrier and those

complaints are supported by adequate evidence, we will pursue'enforcement action as our resources

permit., if we decide to seek enforcement action against the airline. your complaint will be among those

considered in the context of this action, which may lead lo the issuance of a cease and desist order and

to the assessment of civil penalties. In the event that this enforcement action leads to litigation, it is

possible that we may need sworn statements or witnesses for a hearing. We will advise you if, in fact,

we need your further nelp.

For your information, in an enforcement case, the U.S. Department of Transportation is limited to issuing

cease and desisl orders and assessing civil penalties not to exceed $34,174 per violation. Such action

can only be accomplished through settlements or formal hearings before administrative law judges. Wa

cannot order compensation for aggrieved parties. To obtain a personal monetary award of damages, a

complainant would have to file a private legal action that may be based on private contract rights or on

civil rights statutes that provide for a private right of action.

If we have insufficient evidence or it appears that the airline specified in your complaint has not violated

tne ACAA, we will not pursue enforcement.action. Notwithstanding our decision not to pursue

enforcement action, however, private legal action may be pursued in the courts based on private contract

rights or on civil rights statutes that provide for a private right of action and, in such a proceeding,

monetary damages may be sought.

Regardless of whether the airline has been determined to have violated the ACAA, we have entered your

complaint In our computerized industry monitoring system, and the carrier’s ACAA complaint totals in our

monthly Air Travel Consumer Report reflect your complaint. Our monthly report ts made available to the

aviation Industry, the news media and the general public so that both consumers and air travel

companies can compare the overall complaint records of individual airlines, as well as the number of

disability complaints filed against particular carriers. This system also serves as a basis for rulemaking,

legislation, and research.

Moreover, we also routinely monitor our complaint records to determine the extent to which carriers are

in compliance with the ACAA and to track trends or spot areas of concern which we feel may warrant

further action. This ongoing process also enables us to ensure prompt corrective action whenever we

determine that an airline's policies or procedures are not In compliance with our ACAA regulations. Your

complaint will be among those considered in the context of this overall process.

I hope this further information is useful. Thank you again for taking the time to contact us.

Sincerely.

Livaughn Chapman, Jr„

Deputy Assistant General Counsel

for Aviation Consumer Protection

By: Clereece Kroha

Senior Trial Attorney

Enclosures

cc: JetBlue Airways

GENERAL COUNSEL

U.S. Department of

Transportation

Office of the Secretary

•of Transportation

1200 New.Jefsey Avb.,■$.£>•

Washington, DC 20590

INVESTIGATION SUMMARY SHEET

Case Number!

Complainant Title:

- Name:

Address:

Rassenger(s):

Airline:

JetBlue Airways

Travel Date(c):

Not Applicable;

Flight Number(s):

Not Applicable

City Pair:

Richmond to Boston

Location of Incident:

Not Applicable.

Complaint/Issue:

failure ro provide an accommodation to a passenger with a disability

with respect to the carrier’s mask policy.

Applicable Section of

14 CFR Part 382:

382.19

Section Summary;

(a) As a carrier; you mus; not refuse to provide transportation to a

paisunguf with a OrSciOHUy on the Uasrs of his. or her U!s.dl»3Uy, except asspecihea^Y permittee by this part.

(b} You must not refuse to provide transportation to a passenger with a

disability because the person's disability results in appearance or

involuntary bcih.ivior that may oftonr, annoy, or ioronvi-’nicrice

crewmembers brother possengers(c) You may refuse to provide transportation to any passenger on the

basts of safety, as provided in 49 U.S.C. *14902 or I A CFR 121,533. or to

any passenger whose carriage would violate i-AAor ISA requirements or

appkab’o requirements of a foreign government.

(1 ) You tan dfitcmilfit; t hat th«;re if, a disability■ feiatud ssabHy basis for

refusing to provide transportation to a passenger with a disability if you

are able to demonstrate that the passenger poses a direct threat {see

definition in $382.3). in determining whether an individual poses a

direct threat, you must make an individualized assessment, based on

reasonable judgment, that relies on current medical knowledge or on the

best available objective evidence, to ascertain:

(1) the nature, duration, and severity of the dsfe;

(ii) The probability that the potential harm to the health and safety of

others wilt actually occur; and

(Pi) Whether reasonable modifications Of policies, practices, nr

procedures will mitigate the risk.

(2) if you determine Midi the passenger does pose a direct threat, you

must select the ieast restrictive response from trie point of view uf the

passenger, consistent With protecting the Health and safety of

others, for example. you musr not. refuse transportation to the

passenger if you can protect the health and safety of others by means

short of a refusal.

(3) in exercising this authority, you must not act inconsistently with the

provisions of this part.

(4) If your actions are inconsistent with any of the provisions of this

part, you are subject to enforcement action under Subpart K of this

part.

Rule violated?

res

Remarks:

Mr.

states that he has a disability that prevents him from

wearing a mask. Mr.

states that he was looking id travel to

Boston for the birth of his first granddaughter and JetBlue Airways

further states that

(JetBlue) offered non-stop flights. Mr.

JetBlue's website stipulates that ail passengers over the age of 2 must

wear a face covering over their nose and mouth throughout their

journey.

In. the carrier's October 22, 2021, fetter to Mr.

JeUSiuc

confirms Mr. ____________ understanding of its mask policy by stating

that it requires ail customers over the age of 2 to wear a face covering

over their nose and mouth throughout tho»r journey, including during

check-in,* boarding, in flight and deplaning.

On February 5, 2G?1, the Department of Transportation's Office of

Aviation Consumer Protection (OACP) issued a notice titled ‘'Notice of

enforcement Policy: Accommodation by Carriers of Persons with

Disabilities' Who Are Unable to Wear Masks While on Commercial

Aircraft.“ The notice reminds U.S. and foreign air carriers of their legal

obligation to accommodate the needs of passengers with disabilities

when developing procedures to implement the federal mandate on the

use of mask.* to mitigate the public Health risks associated with COVIO

19. The notice makes oeai that: airline policies that expressly allow no

exceptions to the mask requirement other than for children under the

age or two violate the a»e carrier Access Act.

The Air Carrier Across Arr and its implementing regulation. H O-R Part.

362 (Part 382 >. require airlines to make reasonable accommodaUonr.,

based on individualized assessments, for passengers with disabilities

who ore unable to wear or safely v-earo mask Cue to their disabilities

It would be a violation of the ACAA and Part '■&? fur an airline to have,

an exemption for children under 2 on the basis that children tivd ar?c

cannot wear nr safely wear a mask anrj not have an exemption far me

limited number of individuals with disabilities who similarly cannot wear

or safely wear a mask when there is no evidence that these individual*

with disabilities would pose a greater heath risk to others.

JetBlue's mask policy that was -in place at the j ime Mr.

planned to travel failed to provide an exemption for passengers with

disabilities who cannot wear or safely wear a mask due to their

disabilities. Asa result, JetBlue did not conduct an individualized

assessment to determine whether Mr. ___________ couifj not wear or

safely wMf a mask due to bis disability and wivtnci a reasonably

accommodation could be made that would permit Mr.____________ to fly

safely without a mask. Therefore, wc find that JetBlue violated the

ACAA and Ran 382 in this instance.

Since the issuance of the notice, OACP has exercised its prosecutorial

discretion and provided the airlines 4S days from the date of the

Enforcement Notice to come into compliance with its obligation under

the ACAA and Part 382 by amending their mask polices to provide

reasonable accommodations to persons with disabilities who arc? unable

to wear masks or to wear masks safely, so long as the airline

demonstrates that it began the process of compliance as soon as this

notice was issued. A copy of OACP's Enforcement Notice is available on

the Department's website at!

https://WWW. transportation, gov/aircortsumei/masks-nodet’-fjf-enforcement-policy. We note that since the time of this incident, JetBiue

has informed OACP that it has amended Its mask policy to comply with

Secure Message

Sent Date: 09/05/2021 01:13 AM

From: Department of Labor

To: AARON ABADI

Priority: NORMAL

Subject: End of Unemployment Benefits

Dear AARON ABADI:

This letter is proof that you have received all regular Unemployment Insurance benefits available on your

current claim. This means you have received the maximum 26 weeks (104 effective days) of benefits on

your claim with a benefit year ending 03/14/2021.

You cannot receive any more regular Unemployment Insurance benefits on this claim. Please note that

there are no extensions of Unemployment Insurance benefits available beyond 26 weeks.

We encourage you to continue working with your local New York State Career Center to find a job.

To find your closest Career Center, go to http://labor.ny.gov/career-center-locator/ [http://labor.ny.gov/

career-center-locator/] or call our Contact Center at 1-888-4 NYSDOL (1-888-469-7365). Services

offered include:

* Help with resume writing and interviewing skills;

* Career advice and guidance;

* Skills assessments to help determine jobs you might be suited for;

* Job-hunting workshops;

* Information about jobs available in a particular area or industry (labor market information);

* Job referrals and;

* Information about training opportunities and referrals to training when appropriate.

Career Services are available al no charge to you.

We also recognize that the ending of your Unemployment Insurance benefits may create a

serious financial hardship for you and your family. Please go to www.mybenefits.ny.gov [http://

www.mybenefits.ny.gov] to see what programs may be available to help you with food, shelter, health

insurance and other needs.

For the Commissioner of Labor,

By: Unemployment Insurance Division

aa@neg.com

From:

Sent:

To:

Subject:

Attachments:

governor@maine.gov

Tuesday, May 4, 2021 9:33 AM

aa@neg.com

Thank you for contacting the Office of Governor Janet Mills

An Order Simplifying and Strengthening Enforcement of Face Covering Requirements.pdf; Face

Covering Executive Order FAQs.pdf

Thank you for contacting Governor Mills with your concerns about the State’s face coverings requirements

during the C0V1D-19 pandemic.

Over the course of the COVID-19 pandemic, Governor Mills has issued a number of Executive Orders with the

goal of protecting the health and safety of Maine people, supporting small businesses, and minimizing the

impact to the economy. However, with widespread community transmission and increased COVID-19 cases

and hospitalizations in Maine, she signed an Executive Order on December 11 that simplifies and strengthens

the enforcement of the State’s face covering requirement. Moving forward, owners and operators of all indoor

public spaces - regardless of the type of entity or size - must not allow those who do not wear a face covering

to enter or remain in their venue. This Order also clarifies that claiming a medical exemption is not an excuse to

enter or remain in an establishment without a face covering. This comes in light of reports fr

This text is long and has been trimmed here. Open the source document for the complete record.

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.