Do You Have a Right Not to Wear a Mask in WV?

Do You Have a Right Not to Wear a Mask in WV?

Nov 17, 2021 | Civil Rights


If 2020 was the year for contesting social distancing mandates, 2021 became the year for contesting both vaccine and mask mandates. Americans get very sensitive when it comes to their rights, and the mask mandates of 2021 have had many Americans wondering what recourse they have, if any, when they are required to wear masks. An experienced civil rights lawyer in WV answers the question, explaining that you don’t have a right not to wear a mask in WV if a business or organization requires masking on its premises.

No Law or Constitution Confers a Right Not to Wear a Mask in WV

Civil rights attorneys are accustomed to representing clients who have been illegally singled out in some way. If you ask a civil rights attorney in WV about mask mandates, that attorney is likely to start by explaining exactly what is protected by civil rights laws.

There are several sources of law that a civil rights lawyer in WV engages with on any normal day of protecting the civil rights of Americans:

Civil rights laws are meant to protect individuals from discrimination on the basis of race, gender, and sexual orientation. Common examples of civil rights violations include the following:

  • Sex discrimination in an educational setting, including athletics
  • Housing discrimination based on race, sex, or national origin
  • Denial of employment based on membership in a protected class
  • Sexual harassment in the workplace

Mask mandates usually apply universally in a particular location. As a result, they do not generally burden one of the groups protected by civil rights laws. In short, civil rights law does not confer a right not to wear a mask when a business or organization requires masking by all on its premises and enforces that rule equally.

No Constitution or Federal or State Law Confers a Right Not to Wear a Mask in WV

Image of a woman wearing a face mask and holding a maskless child, representing the questions about different mask mandate rules that a civil rights lawyer in WV like M. Andrew Brison an answer.

Support for mask mandates may be found in a variety of laws. Most of these sources authorize the government to take action, such as requiring masks, to protect public health interests. At the federal level, Section 361 of the Public Health Service Act, 42, US Code § 274d, gives the US Department of Health and Human Services authority to prevent the spread of communicable diseases from outside the United States and from one state to another. As noted by a report by the Congressional Research Service, however, the Public Health Service Act is arguably subject to a narrow construction. Further, the Religious Freedom Restoration Act of 1993 would allow some people to be exempt from such a rule.

Locally, businesses and organizations may require masking as long as the requirement is universally implemented and enforced without violating federal or state law or constitutional rights. Indeed, the Occupational Safety and Health Administration (OSHA) requires employers to create and maintain a safe work environment for their employees.

Some have challenged mask mandates based on the freedoms guaranteed in Bill of Rights. In particular, they have argued that First Amendment freedom of speech rights are implicated. However, courts have largely rejected this argument, finding that masks do not prohibit communication. As a result, nothing in the Bill of Rights confers a right not to wear a mask .

Can Employers and Businesses Make You Wear a Mask?

As long as West Virginia Governor Jim Justice’s June 20, 2021 Executive Order, which lifted the mask mandate, remains in effect, there is no statewide mask mandate for fully-vaccinated individuals. However, private businesses may still require masks on their premises as long as that requirement is implemented in a non-discriminatory manner. In other words, mask mandates do not violate civil rights unless they are imposed against or enforced in a way that discriminates against someone based on one of these characteristics:

  • Race
  • Sex (including gender, gender identity, sexual orientation, or pregnancy)
  • Religion
  • National origin
  • Veteran status
  • Age
  • Physical or mental disability

No one has a civil right not to wear a mask because no civil rights are violated when a private business requires anyone who works on or enters the business’s premises to wear a mask as long as it implements that requirement uniformly.

Private businesses and organizations, public schools, and higher education institutions have authority to mandate the use of face coverings regardless of vaccination status. Many local school districts, such as the Kanawha County Schools, have issued mask mandates for students and staff when indoors at school.

When Do You Need to Consult a Civil Rights Lawyer in WV?

Very few mask debates rise to the level of civil rights violations. While there may be exceptions, they are very limited in scope and must involve unequal implementation of mask requirements. Any mask requirement is unlikely to constitute a civil rights violation unless it is applied or enforced only as to a protected class or group. Following are some examples in which mask requirements may violate civil rights:

  • A business requires masking only by visitors of a particular race;
  • A school requires masking only by students, staff, or visitor of a particular religious affiliation, gender identity, or sexual orientation; or
  • A restaurant requires masking only by visitors of a particular national origin.

Mask requirements are highly unlikely to infringe on your civil rights, but other conduct may do so. Although you do not have a right not to wear a mask in WV, other conduct may well violate your civil rights. And when it comes to civil rights violations in West Virginia, attorney M. Andrew Brison has the experience and skill to fight for your rights in the pursuit of justice. You can schedule a consultation with an experienced civil rights lawyer in WV at The Law Office of M. Andrew Brison, PLLC by calling 304-301-3916 or by completing this online contact form.