Asking about masks does not violate HIPAA Law, despite signs from Lamar businesses
LAMAR, Colo. (KRDO) — Several businesses in the southeastern town of Lamar say they won’t give customers a hard time for not wearing face masks inside their stores, despite being located in one of the Colorado counties in jeopardy of losing its variance.
A viewer sent in what appears to be a screenshot from a local business’s Facebook page, claiming shoppers will not be asked to wear a mask because of HIPAA law and the Fourth Amendment:
KRDO called J&N Shoes. The owner did not want to speak on camera but told us the sign is meant to avoid confrontation, adding that most people are complying with Gov. Jared Polis’ statewide indoor mask order.
KRDO also called two other local businesses in Lamar, PitStop and Home Store, which confirmed they have similar signs posted.
Lamar Mayor Kirk Crespin echoed what many other municipalities reported following the governor’s order. He says the city doesn’t have enough resources to enforce mask-wearing in public indoor spaces. Enforcement has been left up to business owners.
“These small business owners don’t want to pry and they don’t want to inquire too much,” he said. “They take our neighbors on our word.”
While it might seem uncomfortable or even rude to ask someone why they aren’t wearing a mask, it does not violate HIPAA law or the Fourth Amendment.
Though HIPAA, or the Health Insurance Portability and Accountability Act of 1996, is designed to protect personal health information, generally speaking, it applies to healthcare providers and business associates. Meanwhile, the Fourth Amendment protects people from unreasonable search and seizure from the government.
There could be some protection for customers under the Americans with Disabilities Act. A legal brief from the Southeast ADA Center written earlier this week suggests private businesses should make accommodations for people with disabilities who can’t wear masks.
It lists things like wearing a full face shield instead, or curbside pickup. It does not promote letting people shop without a face covering, or say anything about the legality of asking someone where their mask is.
“A lot of our small business owners — they’re not legal experts,” Crespin said. “They go by what they’re seeing and hearing and what they’ve read. And if they’re concerned about their neighbors’ privacy, they’ll take that to heart.”
But some people are concerned that privacy could come at the expense of their freedoms. Gov. Jared Polis identified Prowers County as one of 15 Colorado counties at risk of losing its variance if it doesn’t get its COVID-19 case numbers under control.
“We did have one business here in town that had one outbreak,” Mayor Crespin said. “And because of that outbreak, we were put in the high risk category. We’ve been working on that. Over the last week we’ve had better numbers, and I’m sure that’ll improve over the next few weeks.”
According to Prowers County Public Health and Environment on Facebook, the county reported 13 new cases over the last two weeks. The positivity rate was more than 8% for that same period. As is the case with El Paso County, the rate of positivity needs to drop to 5% or below to be safe from the governor’s repercussions.
