A viral, bogus ‘HIPAA’ loophole underscores weaknesses in Louisiana’s mask mandate

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It took weeks for Gov. John Bel Edwards to issue a statewide mask mandate in the face of Louisiana’s dramatic coronavirus rebound, but it only took hours for a legally dubious meme to begin undermining it. Shops and restaurants across the state have posted variants of a “don’t ask” policy seeking to exploit a provision in the governor’s proclamation exempting the mask requirement for people with medical conditions. 

While without legal merit, the smokescreen blows through key cracks in the governor’s mandate: It puts the onus on business owners to police their customers with little support from authorities unless confrontations escalate. Further, Edwards’ July 11 proclamation offers that business owners can rely on “representations” of customers in discerning whether a medical exemption is legit. That’s an easy opening for objecting owners to squeeze through and take a stand on principle, which many have. But even among owners who say they’re not out to make a point, it’s an attractive option. 

“Putting the business owner in the position of policing the public is socially irresponsible,” says Tim Sharlow Jr., who opened a creole restaurant called Tim’s Kitchen with his father in Broussard. For Sharlow, posting the policy wasn’t about defying the governor but presenting an open palm to customers, knowing full well many object to the mandate. Blocking them could cost him business.  

On Monday morning, Sharlow put up a version of the viral “don’t ask” policy, which claims that HIPAA prohibits him from inquiring about medical conditions. He had copied the language from a post shared by a friend who works in the marijuana industry in Colorado. His dad, who minds most of the restaurant’s day-to-day business, asked him to remove it, saying it was the restaurant’s responsibility to uphold the governor’s order. The younger Tim obliged.

“He’s Tim #1. I’m Tim #2,” Sharlow says. 

Social media posts of policies like Sharlow’s have spread widely. Variations follow mask mandates wherever they show up in the U.S. Versions citing the medical privacy provisions in HIPAA, the Americans with Disabilities Act and even the Fourth Amendment date back as far as late April or earlier in other parts of the country. In practice and in spirit, it’s similar to the bogus ADA cards claimed earlier in the pandemic to grant exemptions from store mask policies. 

An early variation of the bogus HIPAA claim, posted to an alt-right forum on Facebook in April

Sharlow says he ran the language of the policy he discovered by a doctor and a lawyer, both friends whom he says OK’d it. To be clear, neither HIPAA nor the Fourth Amendment apply to this issue, health law experts say. HIPAA’s teeth apply to medical providers, and the regulation was created to protect electronic medical records, says Julie Savoy, a Lafayette attorney who specializes in health law. The Fourth Amendment protects American citizens from illegal search and seizure by the government, she says, and has “zero” to do with private businesses. 

Of course, other business owners have gotten behind the mask mandate. Red’s, the Lafayette gym that’s as much a temple of fitness as it is a nexus in the city’s social scene, published an ironclad mask requirement in an emotional and patriotic letter to members penned by the gym’s founder, Red Lerille. Lerille notes his own reluctance but pleads with his customers that his decision was about confronting a deadly threat posed both to life and his business

Albarado’s Fine Furnishings in Lafayette posted clear policy requirements, saying customers without masks will have to show some proof of a medical condition. Owner Don Richard says it’s a struggle to be in charge of enforcement and that full compliance has been tough to achieve. 

“Of course it’s difficult to be required to police this, but I want to be a good citizen,” Richard says. 

Many, if not most, “don’t ask” policies, on the other hand, have been openly defiant, voiced with snide disdain for the governor’s mandate and echoing the broadly conservative viewpoint that it tramples liberty on the road to authoritarianism. 

Landry’s Vineyard in West Monroe posted language similar to Sharlow’s, offering a vague citation of “federal law” — another common variant of the meme — to winking a welcome to patrons without masks. The policy notes that Edwards’ mandate is not a “law of the people, by the people.” 

“We are people who love freedom and liberty,” says Jeff Landry, who owns the vineyard with his wife Libby. “I feel like our freedom and liberties are being trampled on. And if I can lawfully give them freedom and liberty I will.”  

Landry says he’s largely worked it out with the state fire marshal’s office, who has been flexible with him. They worked through some confusion about how the mask mandate plays out during wine tastings and how to handle a vineyard employee who has a medical condition they claim would otherwise prevent her from wearing a mask. The marshal’s office issued no citations and made no warnings. 

(Health experts broadly agree there are few legitimate medical reasons not to wear some kind of face covering.) 

“They’re not trying to be complete buttheads,” the vineyard owner says of the fire marshal’s approach, noting the deputy took stock of how the vineyard worked in practice. People don’t really congregate during wine tastings, and the Landrys work to accommodate whatever needs customers have, including offering curbside delivery for wine orders and spraying down cases with Lysol when asked.  

Setting aside the lack of legal merit — they also attribute their language to a friend on Facebook — Landry insists it’s inappropriate for them to press people about their medical conditions. “Am I going to dress them down?” Landry says, pointing out that they take a similar approach to people with service animals on the premises, not checking for credentials, etc. He took it up with Louisiana House Speaker Clay Schexnayder and says he found another sympathetic ear.  

Schexnayder doesn’t quite remember the conversation that way, recalling that he spoke with the Landrys about a petition circulating to throw out the governor’s emergency orders. (Schexnayder does not support the petition.) But the Republican leader says several constituent businesses have made similar calls to register concern about the mandate with him. 

“I’m as upset as anybody about a mandate,” Schexnayder says, adding that if it’s needed to “flatten the curve,” he’ll go along with it. Still, he sees how it could put businesses in a tough spot. 

“I think it does put them in a difficult situation with regular customers,” he says. “Most of them understand they have a business to keep open and keep operating. Most in my district are doing everything possible to remain open.” 

To whatever extent the Landrys and others have made clear a desire to circumvent what they regard as an illegitimate mandate, the fire marshal’s office won’t take action without more obvious defiance. And when their deputies approach businesses that have staked resistence to the governor’s order, the tenor changes. 

“They’re singing a different song,” says fire marshal spokeswoman Ashley Rodrigue of several meetings between deputies and owners with “don’t ask” policies. “They don’t intend for it to be outwardly defiant.” 

The governor’s order requires proprietors to ask patrons to mask up, Rodrigue says. But that suggests businesses have to be proactive in policing the mandate, a posture which “don’t ask” policies by definition avoid. But Edwards, she says, doesn’t ask them to probe further into people’s medical histories. Asked about the Landrys signalling on liberties, Rodrigue says she could only comment on the official encounter. “Their tone to us was different,” she says. 

Her office is working to clarify what was otherwise left to common sense, namely that masks didn’t have to be on while restaurant patrons are drinking or eating, something owners like the Landrys had been confused about. LDH and the fire marshal’s office issued a joint statement Wednesday clarifying that HIPAA has no bearing on the mask mandate and noting those at high risk ought to limit time in public places:

Individuals who have respiratory conditions that make it difficult to wear a mask are at higher risk of becoming seriously ill from COVID-19 and should still stay at home unless they are completing essential tasks, such as doctor visits or going to purchase medications, food or other necessary items.

Local authorities across the state have shrugged on enforcing the order themselves. Some municipalities and parishes — New Orleans, Shreveport, Jefferson Parish, East Baton Rouge Parish — put out their mask requirements ahead of the governor’s. Elsewhere, authorities defer to the fire marshal or, as in Livingston Parish, have refused the mandate altogether. Suits have been filed to stop the mandates in Shreveport and in Jefferson and East Baton Rouge parishes. It’s possible that local mandates could be useful in bulking up Edwards’ fairly limp requirements. 

The likelihood of resistance delayed the governor’s decision to issue a statewide mandate, even as neighboring states took the step. Health officials have practically begged the public to wear masks recently, but the governor’s mask order didn’t come until mid-July. High levels of compliance are required for masks to have any effect in cooling off Covid’s transmission, health officials have said. Substantial resistance can effectively negate the usefulness of a mandate. 

“The goal in this is not to issue an order,” Dr. Joseph Kanter of Louisiana Department of Health told WWNO this week. “The goal is to get people to wear masks. And because it’s become so politicized, there has been a concern that there might be a negative effect to issuing the order.” 

“Don’t ask” policies are just another weapon in a tragic culture war, joining up with efforts by Republican legislators to oust the governor’s emergency declarations. Others have ghoulishly likened the mandate to Nazi authoritarianism, which killed millions. Attorney General Jeff Landry argued Wednesday that the mask mandate was unenforceable and unconstitutional, an opinion Edwards blasted as “politically motivated.” 

Attempts to buck the governor on coronavirus have drawn loud criticism. Facing backlash, some owners have taken their posts and signs down. 

But the rapid proliferation of “don’t ask” policies has just as often been met with cheers. Besides his dad, Tim Sharlow says he received no pushback across the dozens of shares and comments on his post before he pulled it. 

It was “100% support,” he says. 

About the Author

Christiaan Mader founded The Current in 2018, reviving the brand from a short-lived culture magazine he created for Lafayette publisher INDMedia. An award-winning investigative and culture journalist, Christiaan’s work as a writer and reporter has appeared in The New York Times, Vice, Offbeat, Gambit, and The Advocate.

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