No. 20-1964

IN THE

SUPREME COURT OF THE UNITED STATES OF AMERICA

KAREN SMITH,

Petitioner and Cross-Respondent,

v.

HAMILTON HEIGHTS VETERANS HOME AND

THE STATE OF LINCOLN,

Respondents and Cross-Petitioners.

ON WRIT OF CERTIORARI TO THE SUPREME COURT OF THE UNITED STATES

BRIEF FOR PETITIONER

COMPETITOR NO.: 2914

Counsel for Petitioner

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QUESTIONS PRESENTED

1. Whether a Governor violates the Fourteenth Amendment and Supremacy Clause when,

acting under the authority granted to her by state police powers, she provides eight

exceptions to her Executive Order mandating face coverings in public, but prohibits,

without explanation, only individuals working in nursing homes from using any of the

exceptions available to all other members of the public and healthcare community, and

effectively prohibiting the nursing home employees access to any reasonable

accommodation under the ADA?

2. Did an employee have a claim of discrimination under the Americans with Disabilities

Act (“ADA”) when its employer terminated her for her inability to wear a face mask due

to the panic attacks it triggers, preventing the employee from working, and refused to

provide reasonable accommodations to the employee?

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TABLE OF CONTENTS

QUESTIONS PRESENTED...................................................................................................1

TABLE OF CONTENTS......................................................................................................2-3

TABLE OF AUTHORITIES...............................................................................................4-5

OPINIONS BELOW................................................................................................................6

RELEVANT CONSITUTIONAL PROVISIONS & STATUTES INVOLVED.................7

STATEMENT OF THE CASE..........................................................................................7-11

SUMMARY OF THE ARGUMENT...............................................................................12-13

ARGUMENT....................................................................................................................14-31

I. GOVERNOR WU’S EXECUTIVE ORDER WAS AN INVALID EXERCISE

OF POLICE POWERS AND A VIOLATION OF THE EQUAL

PROTECTIONS CLAUSE OF THE FOURTEENTH AMENDMENT

BECAUSE IT ARBITRARILY DISTINGUISHED BETWEEN ALIKE

GROUPS AND CONTRAVENS FEDERAL LAW...............................................14

A. The Executive Order is not substantially related to a legitimate purpose

because it is under-inclusive and arbitrary.................................................15

B. The Executive Order violates Jacobson because it contravenes the

constitution of the united states....................................................................19

II. HAMILTON HEIGHTS FAILED TO PROVIDE REASONABLE

ACCOMODATIONS BECAUSE MS. SMITH HAS A QUALIFIED

DISABILITY UNDER THE ADA............................................................................21

A. Ms. Smith was disabled under the ADA......................................................21

1.Ms. Smith had a disability....................................................................21

2.Ms. Smith met her burden of proof of demonstrating her

disability...............................................................................................22

B. Ms. Smith was qualified to perform essential functions of the job with

reasonable accommodations.........................................................................25

1.Face masks excluded those with claustrophobia.................................25

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2.Face masks were not a job-related qualification.................................26

3.Reasonable accommodations could have resolved the issue...............27

4.Respondent failed to show Ms. Smith was a direct threat...................30

C. Ms. Smith suffered an adverse employment decision because of her

disability..........................................................................................................31

CONCLUSION......................................................................................................................33

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TABLE OF AUTHORITIES

Supreme Court Cases

Albemarle Paper Co. v. Moody, 422 U.S. 405 (1975).....................................................................26

Albertson’s Inc., v. Kirkingburg, 527 U.S. 555 (1999)...................................................................29

Bragdon v. Abbott, 524 U.S. 624 (1998).........................................................................................30

City of Cleburne, Tex. v. Cleburne Living Ctr., 473 U.S. 432 (1985).................................15, 17, 18

Jacobson v. Massachusetts, 197 U.S. 11 (1905).........................................14, 15, 16, 17, 18, 19, 20

Sch. Bd. of Nassau Cnty, Fla. v. Arline, 480 U.S. 273 (1987).........................................................30

Smith v. Cahoon, 283 U.S. 553 (1931)..........................................................................14, 15, 16, 18

U.S. Dept. of Agriculture v. Moreno, 413 U.S. 528 (1973)………………………………………17

Circuit Court Cases

E.E.O.C. v. AutoZone, Inc., 630 F.3d 635 (7th Cir. 2010)...............................................................23

Lovejoy-Wilson v. NOCO Motor Fuel, Inc., 263 F.3d 208 (2d. Cir. 2001)......................................28

Mancini v. City of Providence by & through Lombardi, 909 F.3d 32 (1st Cir. 2018)......................23

Margherita v. FedEx Exp., 511 F. App'x 71 (2d Cir. 2013)............................................................27

Marinelli v. City of Erie, Pa., 216 F.3d 354 (3d Cir. 2000).............................................................23

Peacock v. Cty. of Orange, 240 F. App'x 176 (9th Cir. 2007).........................................................27

Samson v. Fed. Exp. Corp., 746 F.3d 1196 (11th Cir. 2014)..........................................................26

Spurlock v. United Airlines, Inc., 475 F.2d 216 (10th Cir. 1972)....................................................26

Surling v. C & M Fine Pack, Inc., 739 F.3d 1055 (7th Cir. 2014)...................................................21

Tesone v. Empire Mktg. Strategies, 942 F.3d 979 (10th Cir. 2019)..........................................22, 23

Ward v. Merck & Co., 226 F. App'x 131 (3d Cir. 2007)..................................................................26

Watson v. City of Miami Beach, 177 F.3d 932 (11th Cir. 1999)......................................................27

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District Court Cases

Cty. of Butler v. Wolf, No. 2:20-CV-677, 2020 WL 5510690 (W.D. Pa. Sept. 14, 2020)……….16

Weiss v. Cnty. of Suffolk, 416 F. Supp. 3d 208 (E.D.N.Y. 2018)..............................................24, 25

Canavan v. City of El Paso, No. EP-09-CV-043-KC, 2010 WL 11601100 (W.D. Tex. July 14,

2010)..............................................................................................................................................27

Feshold v. Clark Cnty., No. 2:10-CV-00003-RLH, 2011 WL 2038732 (D. Nev. May 25,

2011)..............................................................................................................................................25

Statutes

29 C. F. R. § 1607.4(c)....................................................................................................................26

29 C. F. R. § 1630.2(h)(2) ..............................................................................................................26

29 C. F. R. § 1630.2(i)(1)(i)............................................................................................................22

29 C. F. R. § 1630.2(j)(1)(ii)...........................................................................................................22

29 C. F. R. § 1630.2(j)(1)(v)...........................................................................................................22

29 C. F. R. § 1630.2(r)....................................................................................................................30

42 U. S. C. § 12102 (4)(A)..............................................................................................................22

42 U. S. C. § 12102(1)(A)...............................................................................................................22

42 U. S. C. § 12112(b)(6)................................................................................................................25

42 U. S. C. § 12113(a)...............................................................................................................26, 28

Constitutional Provisions

U.S. Const. amend. XIV, § 1...........................................................................................................14

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OPINIONS BELOW

The United States District Court for the District of Lincoln granted Respondent’s request

for declaratory relief and motion for summary judgement, finding Executive Order 2020-16 a

reasonable exercise of state police power and finding Petitioner unqualified for employment at

the nursing home within the meaning of the ADA. On appeal, the United States Court of Appeals

for the Twelfth Circuit reversed the district court’s decision on the validity of the Executive

Order, Section 2(a), and upheld the district court’s decision granting Respondent’s motion for

summary judgement on the ADA claim, holding that Petitioner failed to show that she has a

disability within the meaning of the ADA.

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RELEVANT CONSTITUTIONAL PROVISIONS & STATUTES INVOLVED

The relevant constitutional provisions and statutes involved are listed in Appendix A.

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STATEMENT OF THE CASE

The United States, as most of the World, is suffering from an outbreak of a novel

coronavirus, termed internationally as COVID-19. COVID-19 is a virus that affects the

respiratory system and presents risks to the entire population, as well as those with underlying

conditions and the elderly. R. at 5. There is no cure for the virus, and health care officials are

unsure how long the virus will continue to linger. While some states have suffered immensely

from the spread of COVID-19, Lincoln, an island-state, with roughly thirty state-owned nursing

homes, has relatively avoided vast infections and deaths. Id. at 5. Fortunately, as of April 23,

2020 there has not been a single in-state transmission within the state. Id.

Pre-COVID-19, Karen Smith (“Ms. Smith”) had been a dedicated member of Lincoln-

owned1, Hamilton Heights Veterans Home’s (“Hamilton Heights”) custodial staff, working at the

nursing home since it opened in 2016. Id. at 4. As a member of the custodial staff, Ms. Smith

performed sanitation duties, including cleaning residents’ rooms, bathrooms, and common areas.

Id. However, on May 7, 2020, after successfully working for Hamilton Heights for over four

years, Ms. Smith was abruptly discharged from her position because she was medically

prohibited from wearing a facemask. Id.

In discharging Ms. Smith, Hamilton Heights relied on an Executive Order 2020-162

issued by Governor Lacey Wu (“Governor Wu”) on April 30, 2020. Id. at 4. Executive Order

2020-16, effective May 1, 2020 mandated all individuals in the state of Lincoln to wear a face

covering in public places. Id. at 5.

1 Hamilton Heights is funded in part by the United States Veterans Administration and in part by

Medicaid. 2 See Appendix B for full-text of Executive Order 2020-16.

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The Order, however, contained seven exceptions to the mandates:

1. Children 8 and under

2. Anyone who has a medical condition that prevents the wearing of a face covering

3. Anyone who is consuming a drink or food

4. Anyone who is trying to communicate with a person who is hearing impaired

5. Anyone who is giving a speech for broadcast or to an audience

6. Anyone temporarily removing his or her face covering for identification purposes

7. Anyone who is a resident of a town within Lincoln without a high COVID incidence

that has opted out of the masking mandate

Linc. Exec. Order No. 2020-16(1) (April 30, 2020)

In Section 2 of the Order, Governor Wu specifically singled out “[a]ll [nursing home]

staff, volunteers, vendors, and visitors when permitted,” and restricted the use of any of the

aforementioned exceptions to the mask mandate. R. at 6. The Section 2 of the Order required that

all nursing home staff “be required to cover their nose and mouth with an appropriate face

covering (e.g. surgical masks, N95 mask, cloth face covering) at all times when they are inside

the facility.” Id. Further ordering that, “none of the exceptions in Section 1 apply to [nursing

home staff].” Id. Generally, Governor Wu cited concern over the possible shortages of hospital

beds, ventilators, and PPE as the reasoning behind her decision to use the powers granted to her

by the Lincoln Constitution and Emergency Management Act to unilaterally mandate masks in

public under. Linc. Exec. Order No. 2020-16(1) (April 30, 2020). She cited the “vulnerable

situation” of nursing home facilities as the reason for Section 2’s restrictions relating specifically

to nursing home facilities, but she did not elaborate within the order. Id. at § 2.

Although Ms. Smith could continue to perform her required custodial duties, she was

discharged from her position due to a medical condition prohibiting her from wearing a face

mask. R. at 2. Ms. Smith suffers from claustrophobia, causing her to feel a sense of being trapped

in a confined space that she desperately needs to escape whenever she wears a face mask. Id. at

7. She also begins to panic out of fear she will suffocate. Id. Ms. Smith reported this to her

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employer and provided the facility with a physician’s note stating that Ms. Smith must be able to

work without a facemask because face masks cause Ms. Smith to have panic attacks. Id. at 8.

The physician’s note suggested that Ms. Smith be allowed to work without one, offering as an

alternative that she wear a face shield instead. Id. Hamilton Heights did not engage in any

individual analysis with Ms. Smith as to whether or not a face shield could be worn instead of a

face mask. Id. Instead, Hamilton Heights discharged Ms. Smith for the duration of the COVID-

19 pandemic. Id. at 4.

Governor Wu announced that the executive order mandating face masks would be in

effect, indefinitely, until there is a COVID-19 cure. Id. at 6. Nursing homes failing to comply

with the order are subject to up to $5,000 in fines and loss of their state licensure. Linc. Exec.

Order No. 2020-16(1) § 3 (April 30, 2020). The island nature enjoyed by the State of Lincoln has

helped to, relatively, shield Lincoln from vast COVID-19 infections. R. at 24. Lincoln has

suffered only fifteen COVID-19 related deaths to date, and there has not been an in-state

transmission of the virus since April 23, 2020, eight days before Executive Order went into

effect. Id. at 7. Ms. Smith brought action against the State of Lincoln and Hamilton Heights

Veterans Home3, arguing that Executive Order 2020-16 violates her right under the Fourteenth

Amendment Due Process and Equal Protection Clauses. Id. Further arguing that she was

terminated by Hamilton Heights in violation of the Americans with Disabilities Act (“ADA”). Id.

at 7-8.

The United States District Court for the District of Lincoln granted Respondent’s request

for declaratory relief and motion for summary judgement, finding Executive Order 2020-16 a

reasonable exercise of state police power and finding Petitioner unqualified for employment at

3 Together, the “Respondents.”

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the nursing home within the meaning of the ADA. Id. at 9-18. Ms. Smith appealed the district

court’s ruling, and the United States Court of Appeals for the Twelfth Circuit reversed the

district court’s decision as to the validity of the Executive Order, Section 2(a), and upheld the

district court’s decision granting the Respondent’s motion for summary judgement on the ADA

claim, holding that Petitioner failed to show that she has a disability within the meaning of the

ADA. Id. at 19. Ms. Smith petitioned for review of the Circuit Court’s decision affirming

summary judgement dismissal of her ADA claim. Id. at 32. Hamilton Heights Veterans Home

and the State of Lincoln cross-petitioned for review of the Circuit Court’s decision invalidating

Executive Order 2020-16, Section 2(a). Id. The Supreme Court granted certiorari. Id.

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SUMMARY OF THE ARGUMENT

The ruling of the Twelfth Circuit Court of Appeals, invalidating Section 2 of Executive

Order 2020-16 should be affirmed, as the prohibition of nursing home employees from using

exceptions to the mask mandate, even in narrow circumstances is arbitrary and unreasonable.

This Court has long recognized that a state’s broad use of police powers is not absolute. Rather a

state’s police powers are limited to actions that are substantially related to effectuating a specific

purpose. State actions must not be arbitrary or unreasonable. Here, the Twelfth Circuit correctly

found that the order improperly singled out one profession without explaining why other, alike

professions and workplaces were not also exempt from the exceptions provided to the general

public in Part 1 of the Order.

The Supreme Court must reverse the Twelfth Circuit Court of Appeal’s dismissal of the

ADA discrimination issue because Ms. Smith sufficiently demonstrated she was disabled under

the ADA, qualified to perform the essential functions of her job with reasonable

accommodations, and faced an adverse employment decision due to her disability. Ms. Smith

sufficiently demonstrated that she has a mental impairment under the ADA definition that

substantially limits certain major life activities through her own statements and her doctor’s note.

Respondent concedes that Ms. Smith was able to perform all other essential functions of her job,

except for the face mask requirement, which is not a job-related qualification. Respondent also

failed to demonstrate Ms. Smith presented a direct threat without a face mask, while refusing to

provide reasonable accommodations, and Ms. Smith was fired due to her inability to wear a

mask, caused by her mental impairment. Because Executive Order 2020-16 Part 2 is an invalid

use of police powers in violation of Ms. Smith’s Fourteenth Amendment Due Process and Equal

Protection rights, and Ms. Smith had a valid claim for discrimination under the ADA, this Court

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should affirm the Twelfth Circuit’s decision to invalid Part 2 of the Executive Order and reverse

the decision to dismiss Ms. Smith’s ADA claim.

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ARGUMENT

I. GOVERNOR WU’S EXECUTIVE ORDER WAS AN INVALID EXERCISE OF

POLICE POWERS AND A VIOLATION OF THE EQUAL PROTECTIONS

CLAUSE OF THE FOURTEENTH AMENDMENT BECAUSE IT ARBITRARILY

DISTINGUISHED BETWEEN ALIKE GROUPS AND CONTRAVENS FEDERAL

LAW.

Governor Wu’s Executive Order 2020-26 is an invalid exercise of state police powers

and a violation of the Fourteenth Amendment protections afforded to citizens. Under state police

powers, States have broad authority to enact “reasonable regulations established directly by

legislative enactment as will protect the public health and public safety.” Jacobson v.

Massachusetts, 197 U.S. 11, 26 (1905). While state actions promulgated under police powers

may not contravene the Constitution of the United States, states are offered great deference in

their decisions to enact laws relating to public health. Id. at 27. Nevertheless, this deference is

not absolute and courts can intervene when a law has no substantial relationship to public health

or is “beyond all question a plain, palpable invasion of the fundamental law.” Id. at 31.

Specifically, courts have justified interference on Fourteenth Amendment grounds, when a state

action is “so arbitrary and oppressive in particular cases as to justify interference of the courts to

prevent wrong and oppression.” Id at 38;

Fourteenth Amendment forbids a state from “depriv[ing] any person of life, liberty, or

property, without due process of law” or “deny[ing] to any person within its jurisdiction the

equal protection of the laws.” U.S. CONST. amend. XIV §1. Courts apply rational basis review

to Fourteenth Amendment challenges, even when a state takes action guised as police power. See

generally Smith v. Cahoon, 283 U.S. 553 (1931) Rational basis review takes into consideration

the classification of a group and the nature of the discrimination, focusing on the relationship

between the action and its relation to the state’s purpose for the action. City of Cleburne, Tex. v.

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Cleburne Living Ctr., 473 U.S. 432 (1985). When a state characterizes a non-suspect group, as

here, the test is forgiving, but not completely deferential. Courts have held an action

unconstitutional when there is no rational basis for a distinction between groups of individuals.

City of Cleburne, Tex. v. Cleburne Living Ctr., 473 U.S. at 432; see also Cahoon, 283 U.S. at

567 (“The Constitutional guarantee of equal protection of the law is interposed against

discriminations that are entirely arbitrary”).

In light of Jacobson and Fourteenth Amendment jurisprudence, Governor Wu’s

Executive Order 2020-16 Section 2(a) was correctly invalidated by the Twelfth Circuit, as (A)

the order is so under-inclusive that it is arbitrary and not substantially related to the order’s

purpose and (B) the order contravenes the Constitution of the United States which grants

absolute supremacy to the laws of the Federal government.

A. The Executive Order is not substantially related to a legitimate purpose

because it is under-inclusive and arbitrary.

The executive order is not substantially related to the order’s stated purpose preserving

hospital beds, ventilators, and PPE for COVID-19 patients and slowing the spread of the virus

because it is faultily under-inclusive and arbitrary. In Jacobson, the Court upheld a

Massachusetts compulsory vaccination law because it was substantially related to the protection

of the general population’s public health. Jacobson, 197 U.S. at 31. Thus, a permitted exercise of

state police powers. Id. The Court reasoned that because the law was based on science, public

beliefs, and the urgency of the smallpox epidemic, it was not arbitrary nor unreasonable to have a

general requirement that all adults be vaccinated without exceptions. Jacobson at 38. The court

read in a medical exception into the law, explaining that had the state forced an individual to

receive a vaccination that would harm their health or cause death, the law would be unreasonable

or arbitrary in that case, as applied to that individual. Id. at 48.

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The Jacobson Court undeniably afforded great deference to the discretion of state and

local officials in matters of public health. To some, the century-old, case is read to have given

actions taken under the guise of police powers and all-encompassing ‘pass’ if related to the

public health of the state. See Lindsey F. Wiley and Stephen I Vladeck, Coronavirus, Civil

Liberties, and the Courts: the Case Against “Suspending” Judicial Review, 133 Harv. L. Rev. F.

179 (July 2020). Thus, creating a lower level of review than that of even rational basis. Id.

However, the plain language of Jacobson and the century of constitutional jurisprudence that

followed the decision shows that deference is not limitless, and the proper standard of review is

nothing less than that of rational basis review. Cty. of Butler v. Wolf, No. 2:20-CV-677, 2020 WL

5510690, at *6 (W.D. Pa. Sept. 14, 2020). The Jacobson Court reinforced this important

limitation when closing the decision:

Before closing this opinion we deem it appropriate, in order to prevent

misapprehension [of] our views, to observe—perhaps to repeat a thought already

sufficiently expressed, namely—that the police power of a state, whether exercised

directly by the legislature, or by a local body acting under its authority, may be

exerted in such circumstances, or by regulations so arbitrary and oppressive in

particular cases, as to justify the interference of the courts to prevent wrong and

oppression.

See Cty. of Butler v. Wolf, No. 2:20-CV-677, 2020 WL 5510690, at *6 (W.D. Pa. Sept. 14,

2020) (quoting Jacobson, 197 U.S. at 38) (emphasis added).

Under rational basis review, courts have found discriminatory state action arbitrary when

a law is extremely under or over-inclusive, distinguishes between groups of individuals without

justification, and does not rationally relate to effectuating its purpose. See c.f. Smith v. Cahoon,

283 U.S. 553 (1931) (“But, in establishing such a regulation, there does not appear to be the

slightest justification for making a distinction between those who carry for hire farm products, or

milk or butter…or tea or coffee, or groceries in general, or other useful commodities”).

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In City of Cleburne, Tex. v. Cleburne Living Ctr., the Court held that a city cannot deny a

special land use permit for a group home on the basis that the home will house individuals with

intellectual disabilities. 473 U.S. 432 (1985). Declining to classify those with disabilities as a

suspect or quasi-suspect class, the Court instead based its holding on the reasoning that the denial

of a group home for those with intellectual disabilities was not substantially related to

effectuating the City’s state purposes. Specifically, if the denial was for the purposes of

preventing harassment by the local middle school, eliminating the risks associated with the house

being located on a flood plain, and concerns about the residents’ ability to be law abiding

community members, the City would also have denied fraternity houses, nursing homes, and the

like from obtaining special permits. Id. at 449; see also U.S. Dept. of Agriculture v. Moreno, 413

U.S. 528 (1973) (striking down as arbitrary a regulation that required a household to be related to

each other in order to receive food stamps because it does not achieve the stated purpose of

reducing fraud when other fraudulent methods of obtaining food stamps were not restricted).

Similar to City of Cleburne and Moreno, Section 2 of the order is faultily under-inclusive,

such that it cannot substantially relate to the purpose of preserving medical supplies and

protecting vulnerable populations. While the Court in Jacobson rejected the contention that the

compulsory vaccination law violated the Equal Protection guarantee of the Fourteenth

Amendment when it distinguished between children and adults by allowing a medical exception

for children explaining the law applied “equally to all in like condition and there are obviously

reasons why regulations may be appropriate for adults which could not be safely applied to

persons of tender years,” this situation differs, and is more comparable to the facts of Cahoon

and City of Cleburne. Jacobson, 197 U.S. at 35.

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The order provided no explanation for why nursing homes are singled out as exempt from

the general exceptions provided to all other citizens, beyond the fact that there was a “vulnerable

situation” in nursing home facilities. However, if the purpose was to limit the exceptions

available to employees working in vulnerable situations, other high-risk environments would

have been included in the order. The CDC has identified assistant-living facilities, shared and

congregate living situations, homeless service providers, and prisons as places where COVID-19

may spread at higher rates. Specifically, the CDC identified the risk at assistant-living facilities

with the same language used to describe the risk at nursing home facilities. However, a member

of the janitorial staff at an assistant-living facility, doing the same work as Ms. Smith and

interacting with the same demographic would have available to her reasonable accommodations

if a medical condition prevented her from wearing a mask, such as a face shield and choice to

socially distance. Governor Wu provided no reasonable explanation for the differing treatment of

the two groups. Petitioner proffers that it may have something to do with the public criticism of

Governor Wu’s policy and actions towards other matters associated with nursing homes,

including abuse and safety. Ms. Smith’s livelihood should not be a casualty of her Governor’s

attempt to please her political critics.

Moreover, Part 2 further prevents employees at nursing homes to remove their masks to

eat or drink, forcing them to either not consume food or beverage during the duration of their

shift, which is likely to decrease the quality of services they are able to provide and cause

mistakes due to malnutrition and dehydration, or to go outside of the facility in order to eat,

exposing them to the public before their return. Additionally, Part 2 of the Order is arbitrary as

applied to the actual patients of the nursing homes because it denies patients reasonable

accommodations that would otherwise be available to them. The exceptions in Part 1 provide an

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exception for individuals trying to communicate with a person who is hearing impaired. The

average resident age in Hamilton Height’s facility is eighty-two, it is highly likely that a large

number of individuals are hearing impaired and would otherwise require and be provided

accommodation when communicated with providers. These stringent requirements do not

coincide with the purpose of protecting vulnerable individuals and are unreasonable and arbitrary

in nature.

In addition, there exists a strong argument that the Order as a whole is an invalid use of

police powers. Governor Wu purports to base the mask mandate off of science, however, there

have been no in-state, communal transmissions since April 23, 2022 and no active cases in the

state since at least May 29, 2020. There is a strong argument that a public health emergency has

ceased to exist. Thus, extinguishing the authority given to Governor Wu by the Lincoln

Emergency Management. See Linc. Rev. Stat. §44-9(a) (2019). Moreover, the general nature of

the COVID-19 pandemic is long and steady, raising concerns among scholars and courts alike

about the unfettered authority state officials will have to unilaterally initiate laws under the guise

of protecting the public health for an extended period of time. Cty. of Butler v. Wolf, No. 2:20-

CV-677, 2020 WL 5510690, at *6 (quoting Calvary Chapel Dayton Valley v. Sisolak, 591 U.S.

____, 2020 WL 4251360 (Jul. 24, 2020) (Alito, J., dissenting) (“it is a mistake to take language

in Jacobson as the last word on what the Constitution allows public officials to do during the

COVID-19 pandemic .... It is a considerable stretch to read the [Jacobson] decision as

establishing the test to be applied when statewide measures of indefinite duration are challenged

under the First Amendment or other provisions not at issue in that case”)).

Police powers are necessary for short term emergencies, where the situation is so dire that

the normal checks and balances of legislative and judicial branches would hamper states from

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being able to react to exigent circumstances. Accepting broad state action in the name of the

COVID-19 emergency places the rights of individuals in limbo, subjecting them to the whims of

state officials that can go practically unchecked by utilizing “police powers.” Accord Home

Bldg. & Loan Ass'n v. Blaisdell, 290 U.S. 398, 425-26 (1934) (“Emergency does not increase

granted power or remove or diminish the restrictions imposed upon power granted or reserved”).

Here, the Governor the State of Lincoln overstepped the broad authority given to her by

arbitrarily and unreasonably distinguishing between alike groups and restrict their rights as

related to the rest of the public and to those similarly situated to them. The action was so under-

inclusive that it could not substantially relate to the Governor’s goal of protecting vulnerable

populations and preserving resources, and thus was a violation of Ms. Smith’s rights under the

Fourteenth Amendment.

B. The Executive Order violates Jacobson because it contravenes the

Constitution of the United States.

The executive order effectively nullifies the American with Disabilities Act, a federal statute,

in violation of Jacobson and the Supremacy Clause. In Jacobson, the court explicitly limited

state police powers to those that do not “contravene” the Constitution of the United States. Here,

the executive order contravenes the constitution’s supremacy clause by selecting an entire group

of individuals based on their profession and denying them the protections granted to them by

federal law. It also restricts the accommodations that the nursing home is able to provide its

patients who may suffer from a disability and need accommodations for better care.

“Emergency does not create power…The Constitution was adopted in a period of grave

emergency. Its grants of power to the federal government and its limitations of the power of the

States were determined in the light of emergency, and they are not altered by emergency. What

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power was thus granted and what limitations were thus imposed are questions which have always

been, and always will be, the subject of close examination under our constitutional system.”

Home Bldg. & Loan Ass'n v. Blaisdell, 290 U.S. 398, 425–26, (1934).

Recently, several COVID-19 cases involving the restriction of non-emergency surgeries,

with no exceptions for abortions were held unconstitutional because the restriction contradicts

constitutional jurisprudence. See Adams & Boyle, P.C. v. Slatery, 956 F.3d 913, 927 (6th Cir.

2020) (“What we will not countenance, however, is the notion that COVID-19 has somehow

demoted Roe and Casey to second-class rights, enforceable against only the most extreme and

outlandish violations. Such a notion is incompatible not only with Jacobson, but also with

American constitutional law writ large”) (emphasis added).

Governor Wu’s order takes a mask mandate further than any other state has. No other

state has singled out one profession and prohibited them the use of explicit or implicit exceptions

to a mask requirement. Specifically, refusing to comply with a federal mandate. See generally,

e.g., Ex Parte Milligan, 71 U.S. (4 Wall.) 2, 76, 18 L.Ed. 281 (1866) (“The Constitution of the

United States is a law for rulers and people, equally in war and peace, and covers with the shield

of its protection all classes of men, at all times, and under all circumstances”). In fact, whether

explicitly mentioned in a state’s mask mandate or not, it seems certain that the ADA still applies.

II. HAMILTON HEIGHTS FAILED TO PROVIDE REASONABLE

ACCOMODATIONS BECAUSE MS. SMITH HAS A QUALIFIED DISABILITY

UNDER THE ADA.

Ms. Smith was discriminated under the Americans with Disabilities Act. Generally, to bring

a claim of discrimination under the ADA, the petitioner must show the petitioner (1) was

disabled within the meaning of the ADA, (2) was otherwise qualified to perform the essential

functions of her job with or without reasonable accommodations, and (3) suffered from adverse

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employment decisions because of the disability. Surling v. C & M Fine Pack, Inc., 739 F.3d

1055, 1060 (7th Cir. 2014). Under the Americans with Disabilities Act, Ms. Smith had a

qualifying disability, and was otherwise qualified to perform the essential functions of her job

with reasonable accommodations, thus requiring Hamilton Heights to have provided Ms. Smith

with reasonable accommodations. By failing to provide Ms. Smith with reasonable

accommodations, Hamilton Heights discriminated Ms. Smith under the ADA. Therefore, the

Supreme Court must reverse the decision of the Twelfth Circuit Court of Appeals to dismiss Ms.

Smith’s ADA discrimination claim.

A. Ms. Smith was disabled under the ADA.

Ms. Smith was disabled because she had a mental impairment as defined under the ADA,

and met her burden of proving her disability.

1.Ms. Smith had a disability.

Under the ADA, “disability” is defined as a “physical or mental impairment that

substantially limits one or more major life activities of such individual.” 42 U. S. C. §

12102(1)(A). A mental impairment is considered to be “substantially limiting” if the impairment

limits the person’s ability to “perform a major life activity as compared to most people in the

general population.” 29 C. F. R. § 1630.2(j)(1)(ii). “Major life activities” include, as Ms. Smith

included in her argument, breathing, concentrating, thinking, working, and interacting with

others. 29 C. F. R. § 1630.2(i)(1)(i). In this case, Ms. Smith claimed that when she wears a

mask, it causes her claustrophobia to trigger panic attacks, preventing her from breathing,

concentrating, thinking, working, and interacting with others. R. at 7. Under the Equal

Employment Opportunity Commission’s (“EEOC”) definition, claustrophobia is a recognized

mental impairment, which Respondent conceded as well. Id. at 14. Therefore, because Ms.

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Smith claimed a disability recognized by the EEOC and ADA, that caused a substantial

impairment on major life activities, the Supreme Court must find Ms. Smith had a disability.

2.Ms. Smith met her burden of proof demonstrating her disability.

In addition to claiming she had a disability, Ms. Smith also met the low burden of proof

of broadly demonstrating her disability by submitting a medical note. Under the ADA

Amendments Act of 2008, the question of whether a petitioner has a disability or not should not

require an extensive evaluation and be construed in favor of “broad coverage of individuals...to

maximum extent permitted.” 42 U. S. C. § 12102 (4)(A). In other words, the threshold of

proving a disability was supposed to be low and broadly inclusive. Petitions should not need to

present “scientific, medical, or statistical” analysis to establish that an impairment was

substantially limiting under this definition. 29 C. F. R. § 1630.2(j)(1)(v).

In addition, the Circuit Court ruled in Tesone that if a lay jury can understand the

scientific explanations of someone’s impairment, the petitioner does not need to provide medical

evidence, where plaintiff stated she suffered from “muscle weakness” and “chronic lower back

pain,” and her doctor recommended she not lift anything over head or more than 15 pounds.

Tesone v. Empire Mktg. Strategies, 942 F.3d 979, 985, 997 (10th Cir. 2019) (holding plaintiffs

do not need medical evidence when plaintiff alleges an impairment “that a lay jury can fathom

without expert guidance”); see also Mancini v. City of Providence by & through Lombardi, 909

F.3d 32, 42 (1st Cir. 2018) (ruling medical evidence was not needed to show plaintiff’s knee

injury constituted an impairment because a lay jury could understand the correlation); Marinelli

v. City of Erie, Pa., 216 F.3d 354 (3d Cir. 2000) (proving arm and neck pain did not require

medical evidence because it was the least technical in nature and could be understood by a lay

jury); E.E.O.C. v. AutoZone, Inc., 630 F.3d 635, 644 (7th Cir. 2010) (declining to require

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medical evidence where plaintiff provides details of how a back injury limited his ability to care

for himself).

The Circuit Courses cases are similar to the case at hand. In this case, it would be

reasonable to assume that a lay jury would be able to understand that Ms. Smith’s experiences

without expert medical testimony. A lay person would be able to understand that the person

cannot at the least work during the midst of a panic attack. The inquisition should not be on the

number of panic attacks the person has during a regular workday, but rather the nature of the

panic attacks. Hypothetically, it would be reasonable to state that a panic attack that lasts

approximately two seconds with no after affects would be a lot more tolerable than one that may

last more than two hours. However, such a question is not a matter of law for the judiciary to

define, nor does it have to in this case. Ms. Smith not only stated wearing something that covers

her face, which would include a face mask, causes her to panic out of fear of suffocation, but

also that her claustrophobia substantially limits her ability to breathe, think, concentrate, interact

with others, and work. R. at 7-8. The inability to breathe, think, concentrate, work, and interact

with others are impairments a reasonable lay jury would be able to understand without the help

of extensive medical evidence, therefore, such evidence was unnecessarily.

While it may be reasonable to find her sole personal statement to be insufficient, Ms.

Smith also provided a medical expert’s diagnosis of her limiting condition. In Dr. Patel’s

medical note, Dr. Patel stated that wearing face masks causes Ms. Smith to have panic attacks,

and that Ms. Smith needs to be able to work without one. R. at 15. In other words, wearing a

face mask triggers her claustrophobia, which triggers her panic attacks, which limits her ability

to work. Through transitive property, it logically follows that her claustrophobia, a recognized

mental impairment under the ADA, which limited her ability to work, a major life activity under

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the ADA. See Feshold v. Clark Cnty., No. 2:10-CV-00003-RLH, 2011 WL 2038732, at *1 (D.

Nev. May 25, 2011) (finding sufficient a doctor’s note requesting a more open work area for

employee with claustrophobia).

The Court of Appeals majority cited to Weiss claiming that the medical note does not

allege sufficient claims, stating Dr. Patel’s letter did not provide any information on the

frequency of Ms. Smith’s panic episodes, the duration of the episodes, or how these episodes

impact Ms. Smith’s major life activities. R. at 23. The Court further held that there was no

evidence showing limitations to her breathing, concentrating, thinking, or any other major life

activity that are substantial as compared to most people in the general population. R. at 23. The

Court of Appeals, however, was incorrect in relying on Weiss because the medical note in

question in Weiss differs vastly from Dr. Patel’s note. In Weiss, the Plaintiff’s medical note

merely stated that the Plaintiff experienced extreme anxiety or panic attacks when faced with a

feeling of confinement, without mention of her medical diagnosis or its impact on major life

activities. Weiss v. Cnty. of Suffolk, 416 F. Supp. 3d 208, 210 (E.D.N.Y. 2018). On June 2,

2011, Plaintiff provided a second medical note from a doctor which stated that Plaintiff indeed

can work, but must avoid conditions that trigger her claustrophobia. Id. at 211. Such medical

notes are vastly different from Dr. Patel's note on behalf of Ms. Smith. Dr. Patel’s note

specifically stated that Ms. Smith must “work” without a face mask, while the medical notes in

Weiss made no mentioning of any major life activity hindered by the Plaintiff’s claustrophobia.

By having a medical note that stated one of Ms. Smith’s major life activities was limited by her

mental impairment, Ms. Smith’s case was distinguishable from Weiss, as Ms. Smith met the

burden of proof, unlike the petitioner in Weiss.

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Therefore, by providing a medical note evidencing her inability to work due to her panic

attacked due to her claustrophobia triggered by wearing a face mask, the Supreme Court must

find that Ms. Smith met the burden of proving she was disabled under the definition of the ADA.

B. Ms. Smith was qualified to perform essential functions of the job with

reasonable accommodations.

If Respondent had provided Ms. Smith with the reasonable accommodations, she would

have been able to perform the essential functions of the job, as face masks were not job-related.

1. Face masks excluded those with claustrophobia.

Respondent’s qualification of being able to wear face masks excluded those with

claustrophobia, including Ms. Smith. Under the ADA, a petitioner may bring a discrimination

cased based on disabilities when an employer sets forth a qualification standard that screens out

an individual with a disability. 42 U. S. C. § 12112(b)(6). An individual with claustrophobia

may experience panic attacks when the individual feels trapped or enclosed, as Ms. Smith felt

here. 29 C.F.R. § 1630.2(h)(2). Ms. Smith, when wearing a face mask, feels a sense of being

trapped in a confined space, and feels the desperate need to escape, resulting in panic out of fear

she will suffocate due to her claustrophobia. R. at 7. People without claustrophobia were able to

wear a mask and follow this qualification, assuming they had no other impairment that prevented

them from doing so. If it were not for her claustrophobia, Ms. Smith also would have been able

to meet this qualification. Therefore, by making Ms. Smith’s claustrophobia, a disability, the

sole barrier to her meeting the qualifications to work at Hamilton Heights, the Supreme Court

must find that Respondent created a qualification that screened out certain individuals with

certain disabilities.

2. Face masks were not a job-related qualification.

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Respondent may argue that face masks were a job-related qualification, but Respondent

would be misinterpreting the definition of “job-related.” A petitioner may have no

discrimination claim if a respondent can show that a qualification was “job-related for the

position in question and is consistent with business necessity.” 42 U. S. C. § 12113(a); Samson

v. Fed. Exp. Corp., 746 F.3d 1196, 1203 (11th Cir. 2014) (holding the employer bears the burden

of proof on showing that a certain qualification is job-related; see also Ward v. Merck & Co., 226

F. App'x 131, 141 (3d Cir.2007); Spurlock v. United Airlines, Inc., 475 F.2d 216, 218 (10th Cir.

1972). To determine whether a qualification is job-related, the employer must show that the

qualification is a professionally acceptable method that is “predictive of or significantly

correlated with important elements of work behavior which comprise or are relevant to the job or

jobs for which candidates are evaluated.” Albemarle Paper Co. v. Moody, 422 U.S. 405, 431

(1975) (quoting 29 C.F.R. § 1607.4(c)). Multiple circuit courts have also applied this ruling. See

Spurlock v. United Airlines, Inc., 475 F.2d 216, 291 (10th Cir. 1972) (allowing for a college-

degree requirement to be waived as a job-related qualification for flight officers, if the applicant

showed other qualifications or was enrolled in a “rigorous training course” followed by

subsequent refresher courses to ensure that flight officers remained at peak performance ability);

Canavan v. City of El Paso, No. EP-09-CV-043-KC, 2010 WL 11601100 (W.D. Tex. July 14,

2010) (ruling that not having asthma was a job-related requirement for firefighters because

someone with asthma would not have been able to use a breathing apparatus required to perform

a firefighter’s job of putting out fires); Peacock v. Cty. of Orange, 240 F. App'x 176, 177 (9th

Cir. 2007) (holding a county hiring police officers could require an inquiry into the employee’s

vision because it would directly affect the police officer’s functions such as “shoot-no-shoot

decision, facial recognition and license plate identification”); Watson v. City of Miami Beach,

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177 F.3d 932, 935 (11th Cir. 1999) (accepting fitness for duty examinations as job-related

qualifications for police officers, because police officers are required not to act irrationally);

Margherita v. FedEx Exp., 511 F. App'x 71, 72 (2d Cir. 2013) (holding that summary judgement

was inappropriate where the defendant failed to show how a field test testing the plaintiff’s

nature and extent of hearing impairment was related to the plaintiff's job as a freight handler).

The case at hand is distinguishable from all of the cited cases, specifically because a face

mask was not predictive or significantly correlated to how Ms. Smith would have performed as a

janitor at a nursing home. Had it not been for COVID-19, Ms. Smith would not have been

required to wear a face mask, and would have performed her duties as a janitor in the exact same

ways as if she were able to wear a mask. It was undisputed that Ms. Smith was able to perform

all of the essential functions of her janitorial positions, except for the face mask requirement. R.

at 16. Therefore, face masks were not a job-related qualification, because the masks did not

correlate to Ms. Smith’s ability to work as a janitor, as even without the face mask, the Supreme

Court must find that Ms. Smith would have still been able to perform the essential functions of

her job.

3. Reasonable accommodations could have resolved the issue.

Because reasonable accommodations could have resolved the issue, Respondent was

required to provide them for Ms. Smith. Even if a court were to find that a face mask was job-

related qualification, reasonable accommodations could have resolved the issue. Under the

ADA, a job-related qualification may allow the employer to have qualifications that screen out

certain disabled individuals if “such performance cannot be accomplished by reasonable

accommodation.” 42 U. S. C. § 12113(a).

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The lower court held that Respondent did not need to consider reasonable

accommodations for Ms. Smith. R. at 17. The lower court incorrectly extrapolated that, if a

government regulation did not provide an exception, as the Executive Order in this case did not,

that the employer had no obligation to consider alternatives. R. at 17. The lower court forgets

the second requirement of Title I of the ADA, which only allows for certain qualification

standards if “performance cannot be accomplished by reasonable accommodation.” 42 U. S. C.

§ 12113(a). In addition, the Second Circuit ruled that an outright refusal to accommodate would

preclude summary judgment for the employer. Lovejoy-Wilson v. NOCO Motor Fuel, Inc., 263

F.3d 208. 219 (2d. Cir. 2001). In Lovejoy, the Second Circuit ruled the lower court’s summary

judgement in favor of the employer was unlawful because the employer displayed an “outright

refusal” to accommodate the employee’s epileptic condition, where reasonable accommodations

were available but not afforded to the employee. Id. at 219. This case is analogous to the case at

hand. Ms. Smith presented a reasonable accommodation of wearing a face shield, as well as

social distancing and washing her hands, instead of wearing a face mask, to which Respondent

claimed Ms. Smith failed to present Respondent with reasonable accommodation, therefore did

not need to engage in an interactive process with Ms. Smith to address the options. R. at 9. By

failing to even consider the options Ms. Smith put forth, Respondent made an “outright refusal”

to accommodate Ms. Smith. Given the question of fact as to whether such accommodations

were in fact reasonable or not, dismissal should have been precluded.

Moreover, while the Court of Appeals’ majority did not address the lower court’s

application of Albertson, Judge Cramby’s dissent correctly distinguished Albertson from the case

at hand. The lower court also incorrectly applied Albertson, which drew a narrow conclusion

that employers would not be in violation of the ADA for following a government regulation that

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it was obligated to follow. R. at 17. The case touches upon a completely different issue than the

one at hand. The issue in Albertson was on the interpretation of a government-employed

scheme, where the government laid out requirements for commercial truck drivers, but also

seemed to have provided an experimental program where companies may opt to allow for

waivers. Albertson’s Inc., v. Kirkingburg, 527 U.S. 555, 555 (1999). Petitioner, Kirkingburg,

had an eye condition that made it impossible for him to meet the Department of Transportation's

(“DOT”) basic vision standards for commercial truckdrivers, therefore got a waiver of the DOT

standards, pursuant to a newly implement government scheme allowing for those with three

years of experience to waive the requirement. Id. at 558-60. Respondent failed to rehire him

even after Kirkingburg received the waiver. Id. at 560. The Supreme Court ruled that Albertson

was not required to accept the government-approved waiver, since Albertson was already acting

in compliance to government-mandated requirements, and the waiver would have gone directly

against the requirements. Id. at 574-75, 577. Nothing in this case is similar to the case at hand.

While Albertson answered the question of whether an employer was required to follow

the government’s waiver program to the government’s own regulations, the case at hand looks to

whether the employer had to consider the reasonable accommodations Ms. Smith presented.

Both Dr. Patel and Ms. Smith provided a potential accommodation of a face shield. R. at 8.

While Hamilton Heights argued that the efficacy of face shields was questionable compared to

face masks, Hamilton Heights provided no evidence to base its claims on. R. at 9. Therefore,

the question of fact as to whether a face shield may act as a reasonable accommodation still

exists. Because the reasonable accommodation of a face mask existed and could have resolved

the issue of Ms. Smith’s inability to meet the job-related qualifications, the Supreme Court must

find that Respondent was required to consider the options, thus precluding dismissal.

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4. Respondent failed to show Ms. Smith was a direct threat.

Even if Governor Wu’s Executive Order was valid, and Respondent refused to consider

reasonable accommodations, Respondent then was required to show that Ms. Smith was a direct

threat. The Supreme Court held in Abbott that the inquiry into whether an individual’s health

conditions present a direct threat must rely on the “best current medical or other objective

evidence.” Bragdon v. Abbott, 524 U.S. 624, 649-50 (1998) (discussing whether a dentist could

refuse service to a patient who HIV positive, a recognized disability under the ADA); Sch. Bd. of

Nassau Cnty, Fla. v. Arline, 480 U.S. 273, 287 (1987); 29 C. F. R. § 1630.2(r).

In this case, while Respondent cited to studies demonstrating how face masks can prevent

the spread of COVID-19 and how nursing homes had people especially vulnerable to COVID-

19, Respondent failed to provide any scientific findings as to how Ms. Smith wearing a face

shield would present a direct threat. R. at 16. As Judge Cramby correctly stated, there was at

least a question of fact as to whether Hamilton Heights relied on the best current medical

evidence to reject any other means of mitigation risk in nursing home other than a face mask

mandate. R. at 27. Therefore, as Respondent failed to provide any scientific data to determine

that Ms. Smith wearing a face shield would make her a direct threat, Respondent failed to meet

its burden of proof.

Therefore, the Supreme Court must find that Ms. Smith was able to perform the essential

functions of her job with reasonable accommodations because Respondent’s qualifications were

not job-related, there were reasonable accommodations that could have resolved the

disqualifications, and Respondents failed to show that Ms. Smith would have still been a direct

threat.

C. MS. SMITH SUFFERED AN ADVERSE EMPLOYMENT DECISION BECAUSE OF HER

DISABILITY.

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Because Ms. Smith was unable to wear a face mask due to her claustrophobia, she was

terminated by Respondents, thus suffering an adverse employment decision. Claustrophobia is a

recognized disability under the ADA. See supra Section II.A. Ms. Smith’s claustrophobia

causes her to have panic attacks, limiting her ability to work; therefore, if Ms. Smith wanted to

be able to work, she cannot wear a mask. Id. Because she was unable to wear a mask,

Respondent terminated her employment with Hamilton Heights. R. at 2. Through transitive

property, Respondent terminated Ms. Smith due to her disability of claustrophobia. Therefore,

the Supreme Court must find that Ms. Smith suffered an adverse employment decision from

Respondent due to her disability, satisfying this element, and reverse the Twelfth Circuit Court

of Appeal’s dismissal of Ms. Smith’s ADA discrimination claim.

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CONCLUSION

For the foregoing reasons, the Petitioner respectfully requests that this Court affirm

the decision of the Twelfth Circuit Court of Appeals on the first issue of constitutionality and

reverse the decision on the second issue of discrimination under the ADA.

Respectfully Submitted,

Counsel for Petitioner

September 17, 2020

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APPENDIX

Appendix A: Relevant Constitutional Provisions and Statutes Involved

U.S. Const. amend. XIV, §1

“All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are

citizens of the United States and of the state wherein they reside. No state shall make or enforce

any law which shall abridge the privileges or immunities of citizens of the United States; nor

shall any state deprive any person of life, liberty, or property, without due process of law; nor

deny to any person within its jurisdiction the equal protection of the laws.”

29 C. F. R. § 1607.4(c)

If the information called for...shows that the total selection process for a job has an adverse impact, the

individual components of the selection process should be evaluated for adverse impact. If this

information shows that the total selection process does not have an adverse impact, the Federal

enforcement agencies, in the exercise of their administrative and prosecutorial discretion, in usual

circumstances, will not expect a user to evaluate the individual components for adverse impact, or to

validate such individual components, and will not take enforcement action based upon adverse impact of

any component of that process, including the separate parts of a multipart selection procedure or any

separate procedure that is used as an alternative method of selection. However, in the following

circumstances the Federal enforcement agencies will expect a user to evaluate the individual

components for adverse impact and may, where appropriate, take enforcement action with respect to the

individual components: Where the selection procedure is a significant factor in the continuation of

patterns of assignments of incumbent employees caused by prior discriminatory employment practices,

(2) where the weight of court decisions or administrative interpretations hold that a specific procedure

(such as height or weight requirements or no-arrest records) is not job related in the same or similar

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circumstances. In unusual circumstances, other than those listed in (1) and (2) of this paragraph, the

Federal enforcement agencies may request a user to evaluate the individual components for adverse

impact and may, where appropriate, take enforcement action with respect to the individual component.

29 C. F. R. § 1630.2(h)(2)

Physical or mental impairment means [a]ny mental or psychological disorder, such as an

intellectual disability (formerly termed “mental retardation”), organic brain syndrome, emotional

or mental illness, and specific learning disabilities.

29 C. F. R. § 1630.2(i)(1)(i)

Major life activities include, but are not limited to: Caring for oneself, performing manual tasks, seeing,

hearing, eating, sleeping, walking, standing, sitting, reaching, lifting, bending, speaking, breathing,

learning, reading, concentrating, thinking, communicating, interacting with others, and working

29 C. F. R. § 1630.2(j)(1)

The following rules of construction apply when determining whether an impairment substantially

limits an individual in a major life activity:

(i) The term “substantially limits” shall be construed broadly in favor of expansive coverage, to

the maximum extent permitted by the terms of the ADA. “Substantially limits” is not meant to be

a demanding standard.

(ii) An impairment is a disability within the meaning of this section if it substantially limits the

ability of an individual to perform a major life activity as compared to most people in the general

population. An impairment need not prevent, or significantly or severely restrict, the individual

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from performing a major life activity in order to be considered substantially limiting.

Nonetheless, not every impairment will constitute a disability within the meaning of this section.

(iii) The primary object of attention in cases brought under the ADA should be whether covered

entities have complied with their obligations and whether discrimination has occurred, not

whether an individual's impairment substantially limits a major life activity. Accordingly, the

threshold issue of whether an impairment “substantially limits” a major life activity should not

demand extensive analysis.

(iv) The determination of whether an impairment substantially limits a major life activity

requires an individualized assessment. However, in making this assessment, the term

“substantially limits” shall be interpreted and applied to require a degree of functional limitation

that is lower than the standard for “substantially limits” applied prior to the ADAAA.

(v) The comparison of an individual's performance of a major life activity to the performance of

the same major life activity by most people in the general population usually will not require

scientific, medical, or statistical analysis. Nothing in this paragraph is intended, however, to

prohibit the presentation of scientific, medical, or statistical evidence to make such a comparison

where appropriate.

(vi) The determination of whether an impairment substantially limits a major life activity shall be

made without regard to the ameliorative effects of mitigating measures. However, the

ameliorative effects of ordinary eyeglasses or contact lenses shall be considered in determining

whether an impairment substantially limits a major life activity.

(vii) An impairment that is episodic or in remission is a disability if it would substantially limit a

major life activity when active.

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(viii) An impairment that substantially limits one major life activity need not substantially limit

other major life activities in order to be considered a substantially limiting impairment.

29 C. F. R. § 1630.2(r)

Direct Threat means a significant risk of substantial harm to the health or safety of the individual

or others that cannot be eliminated or reduced by reasonable accommodation. The determination

that an individual poses a “direct threat” shall be based on an individualized assessment of the

individual's present ability to safely perform the essential functions of the job. This assessment

shall be based on a reasonable medical judgment that relies on the most current medical

knowledge and/or on the best available objective evidence. In determining whether an individual

would pose a direct threat, the factors to be considered include:

(1) The duration of the risk;

(2) The nature and severity of the potential harm;

(3) The likelihood that the potential harm will occur; and

(4) The imminence of the potential harm.

42 U. S. C. § 12102(1)(A)

The term “disability” means, with respect to an individual, a physical or mental impairment that

substantially limits one or more major life activities of such individual;

42 U. S. C. § 12102(4)(A)

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The definition of “disability” in paragraph (1) shall be construed in accordance with the...definition of

disability in this chapter shall be construed in favor of broad coverage of individuals under this chapter,

to the maximum extent permitted by the terms of this chapter.

42 U. S. C. § 12112(b)(6)

[T]he term “discriminate against a qualified individual on the basis of disability” includes using

qualification standards, employment tests or other selection criteria that screen out or tend to screen out

an individual with a disability or a class of individuals with disabilities unless the standard, test or other

selection criteria, as used by the covered entity, is shown to be job-related for the position in question

and is consistent with business necessity

42 U. S. C. § 12113(a)

It may be a defense to a charge of discrimination under this chapter that an alleged application of

qualification standards, tests, or selection criteria that screen out or tend to screen out or otherwise deny

a job or benefit to an individual with a disability has been shown to be job-related and consistent with

business necessity, and such performance cannot be accomplished by reasonable accommodation, as

required under this subchapter.

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Appendix B: EXECUTIVE ORDER 2020-16 April 30, 2020

WHEREAS, protecting the health and safety of Lincolnians among the most important functions

of State government; and,

WHEREAS, it is critical that Lincolnians who become sick are able to be treated by medical

professionals, including when a hospital bed, emergency room bed, or ventilator is needed; and,

WHEREAS, it is also critical that the State’s health care and first responder workforce has

adequate personal protective equipment (PPE) to safely treat patients, respond to public health

disasters, and prevent the spread of communicable diseases; and,

WHEREAS, Coronavirus Disease 2019 (COVID-19) is a novel severe acute respiratory illness

that has spread among people through respiratory transmissions, the World Health Organization

declared COVID-19 a Public Health Emergency of International Concern on January 30, 2020,

and the United States Secretary of Health and Human Services declared that COVID-19 presents

a public health emergency on January 27, 2020; and,

WHEREAS, on March 11, 2020, the World Health Organization characterized the COVID-19

outbreak as a pandemic, and has reported more than 3 million confirmed cases of COVID-19 and

200,000 deaths attributable to COVID-19 globally as of April 30, 2020; and,

WHEREAS, a vaccine or treatment is not currently available for COVID-19 and, on April 24,

2020, the World Health Organization warned that there is currently no evidence that people who

have recovered from COVID-19 and have antibodies are protected from a second infection; and,

WHEREAS, despite efforts to contain COVID-19, the World Health Organization and the

federal Centers for Disease Control and Prevention (CDC) indicated that the virus was expected

to continue spreading and it has, in fact, continued to spread rapidly, resulting in the need for

federal and State governments to take significant steps; and,

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WHEREAS, the CDC currently recommends that all United States residents take precautions to

contain the spread of COVID-19, including that they: (1) stay home as much as possible; (2) if

they must leave their home, practice social distancing by maintaining 6 feet of distance from

others and avoiding all gatherings; (3) wear cloth face coverings in public settings where other

social distancing measures are difficult to maintain; (4) be alert for symptoms such as fever,

cough, or shortness of breath, and take their temperature if symptoms develop; and (5) exercise

appropriate hygiene, including proper hand-washing; and,

WHEREAS, the CDC also recommends the following precautions for household members,

caretakers and other persons having close contact with a person with symptomatic COVID-19,

during the period from 48 hours before onset of symptoms until the symptomatic person meets

the criteria for discontinuing home isolation: (1) stay home until 14 days after last exposure and

maintain social distance (at least 6 feet) from others at all times; (2) self-monitor for symptoms,

including checking their temperature twice a day and watching for fever, cough, or shortness of

breath; and (3) avoid contact with people at higher risk for severe illness (unless they live in the

same home and had the same exposure); and,

WHEREAS, as circumstances surrounding COVID-19 rapidly evolve, there have been frequent

changes in information and guidance from public health officials as a result of emerging

evidence; and,

WHEREAS, as of April 30, 2020, there have been nearly 700 confirmed cases of COVID-19 in

90 Lincoln counties and 15 deaths from COVID-19; and,

WHEREAS, studies suggest that for every confirmed case there are many more unknown cases,

some of which are asymptomatic individuals, meaning that individuals can pass the virus to

others without knowing; and,

WHEREAS, I declared all counties in the State of Lincoln as a disaster area on April 30, 2020

because the current circumstances in Lincoln surrounding the spread of COVID-19 constitute an

epidemic and a public health emergency under Section 9(a) of the Lincoln Emergency

Management Act; and,

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WHEREAS, I declared all counties in the State of Lincoln as a disaster area on April 30, 2020

because of potential future shortages of hospital beds, ICU beds, ventilators, and PPE, and

critical need for increased COVID-19 testing capacity constitute a public health emergency

under Section 4 of the Lincoln Emergency Management Act; and,

WHEREAS, the Lincoln Constitution, in Article IV, Section 6, provides that “the Governor shall

have the supreme executive power, and shall be responsible for the faithful execution of the

laws,” and states, in the Preamble, that a central purpose of the Lincoln Constitution is to

“provide for the health, safety, and welfare of the people;” and,

WHEREAS, for the preservation of public health and safety throughout the entire State of

Lincoln, and to ensure that our healthcare delivery system is capable of serving those who are

sick, I find it necessary to take measures consistent with public health guidance to slow and stop

the spread of COVID-19 and to prevent shortages of hospital beds, ICU beds, ventilators, and

PPE and to increase COVID-19 testing capacity;

THEREFORE, by the powers vested in me as the Governor of the State of Lincoln, pursuant to

the Lincoln Constitution and Sections 9(a) of the Lincoln Emergency Management Act, and

consistent with the powers in public health laws, I hereby order the following, effective May 1,

2020:

Section 1. Face Covering Order. Every individual in Lincoln shall wear a face covering that

covers one’s face and nose when in any establishment open to the public whether indoors or

outdoors. The only exceptions to this requirement are:

1) Children 8 and under

2) Anyone who has a medical condition that prevents the wearing of a face covering

3) Anyone who is consuming a drink or food

4) Anyone who is trying to communicate with a person who is hearing impaired

5) Anyone who is giving a speech for broadcast or to an audience

6) Anyone temporarily removing his or her face covering for identification purposes

7) Anyone who is a resident of a town within Lincoln without a high COVID incidence that

has opted out of the masking mandate

Section 2. Public Health Requirements for Individuals Working in Nursing Homes.

a) All staff, volunteers, vendors, and visitors when permitted, shall be required to cover their

nose and mouth with an appropriate face covering (e.g., surgical mask, N95 mask, cloth face

covering) at all times when they are inside the facility. All individuals shall be required to cover

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their nose and mouth with a face-covering when in a nursing home or long-term care facility. A

nursing home or long-term care facility must provide workers with appropriate face coverings if

they do not have such coverings. When the work circumstances require nursing home or long-

term care facility must provide other PPE in addition to face coverings. Due to the vulnerable

situation of those in these facilities, none of the exceptions in Section 1 apply to this Section 2.

b) Facilities shall screen all persons who enter the facility (including volunteers, vendors, and

visitors when permitted) for signs and symptoms of COVID-19, including temperature checks.

Facilities shall refuse entrance to anyone screening positive for symptoms of COVID-19.

c) To the extent possible, residents should wear face coverings in the following circumstances:

(i) If they leave their rooms or when they are within close proximity (under six feet) of

others inside the facility; and

(ii) For any trips outside of a facility (e.g. such as for a medical appointment).

Section 3. Penalties. A person who knowingly and wilfully fails to comply with this Order and

Directive is guilty of a misdemeanour and on conviction is subject to imprisonment not

exceeding one year or a fine not exceeding $5,000 or both. A facility who fails to comply this

Order and Directive is guilty of a misdemeanour and on conviction is subject to loss of licensure

and/ or a fine not exceeding $5,000 per incident or both.

Section 4. Severability. If any provision of this Directive and Order or its application to any

person, entity, or circumstance is held invalid by any court of competent jurisdiction, all other

provisions or applications of this Directive and Order shall remain in effect to the extent possible

without the invalid provision or application. To achieve this purpose, the provisions of this

Directive and Order are severable.