By Matthew Santoni

Law360 (July 16, 2020, 5:23 PM EDT) -- Pittsburgh-based grocer Giant Eagle defended its mandatory mask policy against a customer's demand for an injunction in federal court, arguing that the Americans with Disabilities Act did not require the company to put shoppers and staff at risk of contracting COVID-19 if customers who can't or won't wear masks were merely inconvenienced.

The grocery chain pointed to a Facebook post made by plaintiff Josiah Kostek in which he allegedly admitted that he was "in excellent health," despite his claim that he could not wear a mask without developing panic attacks and difficulty breathing, as evidence that he was unlikely to succeed in his ADA suit and that the court should not overturn a policy that all shoppers and staff wear masks inside Giant Eagle's stores.

"Not only has Kostek publicly admitted that no disability prevents him from wearing a face covering, the ADA specifically permits legitimate safety requirements and rejects proposed modifications that pose a direct threat to the health or safety of others or create an undue burden," Giant Eagle's brief in opposition to the motion for a preliminary injunction said. "The immediate health risks to Giant Eagle's other customers, team members and the general public far outweigh any alleged inconvenience to Kostek."

Giant Eagle asked the court Wednesday to deny Kostek's request for an injunction, arguing his case was unlikely to succeed on the merits, that he had other options for shopping without running afoul of the mask requirement, and that the balance of equities and public policy surrounding the pandemic were in Giant Eagle's favor.

Kostek, who was kicked out of an Oil City, Pennsylvania, Giant Eagle in mid-May for allegedly refusing to wear a mask and arrested for disorderly conduct, was one of dozens of plaintiffs whose cases against Giant Eagle's mask policy were consolidated in the U.S. District Court in Pittsburgh. While they dealt with different stores and customers, the suits all challenged Giant Eagle's policy of requiring all customers to wear a face covering regardless of whether they claimed to have a disability.

While Kostek had submitted his medical records under seal, Giant Eagle said his opposition to masks appeared ideological rather than medical. The grocer's brief included copies of Facebook posts he made to a group called "Wolferines: Fighting for Small Business in PA."

"I don't mind wearing a mask, if someone asks me polite. I'm in excellent health with the exception of a herniated disk in my neck," the post said. "I don't cause problems and don't even leave my house unless necessary. I have a right to refuse wearing a mask."

The grocer also said its face-covering policy complied with Pennsylvania rules that "essential businesses" had to follow in order to stay open during a statewide shutdown intended to slow the spread of the pandemic.

Although the state's orders said customers must wear masks on a store's premises and included an exception for those who could not wear one because of medical conditions, the state gave no way for businesses to confirm what those medical conditions were, the grocer said.

But while Kostek pointed to the state's order as evidence that Giant Eagle could not deny him entry after he claimed a medical exemption, the grocer countered Wednesday that the state orders were merely the minimum requirements and did not prevent some businesses from implementing stricter measures, like the no-exemptions mask policy.

"Giant Eagle cannot ask its team members — who already stand on the front lines of the pandemic — or its customers to accept the increased risk of infection that comes with allowing exceptions to that rule," the grocer said. "Nor would it make sense for Giant Eagle to ask team members to enforce a policy that requires exceptions, with no ability to confirm if an exception applies. Instead, Giant Eagle provides face coverings to any customer who needs one and offers home delivery or curbside service to any customer who either cannot or does not want to wear one."

The ADA says public facilities don't have to make accommodations that would pose a "direct threat" to health, Giant Eagle said, citing the U.S. Supreme Court's 1987 decision in School Board of Nassau County v. Arline , where a teacher's tuberculosis counted as a disability but the school didn't have to accommodate it in a way that would risk spreading the disease.

"Allowing Kostek, and other customers, to shop in Giant Eagle's stores without a face covering qualifies under Arline … it would risk the health — and the lives — of Giant Eagle's customers and team members, to say nothing of the potential health, financial, and social impact caused by any resulting increased spread of the virus," Giant Eagle's brief said.

Removing the policy would create an "undue burden" under the ADA if Giant Eagle had the increased costs of disinfecting stores contaminated by mask-less shoppers, or the threat of workers refusing to come in, the grocer said. When balanced against the potential inconvenience to shoppers who have other options like curbside pickup, the risks of infection weighed in favor of the mask policy, Giant Eagle argued.

"On the one hand, we have some purported inconvenience to Kostek, and, on the other hand, we have the increased risk of sickness, even death, for thousands of Pennsylvanians," the brief said. "Granting Kostek's preliminary injunction would mean subjecting Giant Eagle's team members and customers to increased risk of COVID-19 infection and jeopardizing Giant Eagle's ability to provide essential services during this challenging time."

"We will continue to do everything we reasonably can to keep people safe while accommodating all of our guests," Giant Eagle representative Dick Roberts said in a statement. "We feel strongly that our face-covering policy supports public health, safeguards our frontline team members who provide guests with essential services, and complies with the law."

Counsel for Kostek and the other plaintiffs said he would save his comments for his reply, due by July 29.

Kostek and the other plaintiffs are represented by Thomas B. Anderson of Thomson Rhodes & Cowie PC.

Giant Eagle is represented by Jonathan D. Marcus, Jeremy D. Engle and Lauren Melfa Catanzarite of Marcus & Shapira LLP.

The case is Pletcher v. Giant Eagle Inc., case number 2:20-cv-00754, in the U.S. District Court for the Western District of Pennsylvania.

--Editing by Steven Edelstone.

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