By Matthew Santoni

Law360 (July 2, 2020, 5:00 PM EDT) -- Opponents of Pittsburgh-based grocer Giant Eagle's mandatory mask policy for Pennsylvania shoppers have asked a federal court for an injunction compelling the grocer to waive the policy for people with disabilities amid the COVID-19 pandemic.

Filed on behalf of Josiah Kostek, one of dozens of plaintiffs whose cases were consolidated in the Pittsburgh federal court, the motion said Giant Eagle's no-exceptions coronavirus mask policy barred customers like Kostek — whose disability prevented him from wearing a mask — from shopping like any other customer, in violation of the Americans with Disabilities Act.

"Because plaintiff cannot wear a mask, he cannot select his own groceries at a time and place that is convenient to him, just like every other customer in the store … [H]e must have someone else shop for him inside the store and he cannot pick up his groceries on the day he chooses to shop," the motion said. "The regulations clearly establish that Giant Eagle's alternative options that it has offered to its customers at some locations are not a viable alternative to allowing disabled shoppers who cannot wear masks to shop inside Pennsylvania stores like everyone else. Giant Eagle cannot compel disabled customers to choose some alternative; that is illegal."

Kostek asked the court for an injunction barring Giant Eagle from enforcing its mask policy for customers with disabilities that made them unable to wear masks, noting that state and federal guidelines recommended such exceptions without requiring a customer to prove that they have such a disability.

Kostek said he had medical conditions — which the motion said were detailed in sealed medical records filed with the court — that meant he could not wear a mask without suffering from panic attacks and difficulty breathing. Prior to consolidating dozens of the mask cases, the court had denied Kostek's initial bid for an injunction because he hadn't been specific enough about what prevented him from wearing a mask.

Kostek said he had twice tried to shop without a mask at a Giant Eagle store in Oil City, Pennsylvania, in May and was denied service, resulting in police being called and charging him with disorderly conduct, and an indefinite ban from the store that the motion said was the closest and most convenient to his home.

Giant Eagle staff had cited company policy that said all customers must wear masks, with no exceptions for disabilities, the motion said. This policy appeared to apply to all the chain's stores in Pennsylvania, but not to stores in other states that had looser mask requirements.

"The fact that Giant Eagle has no comparable policies in West Virginia, Ohio and Indiana proves that the alternative options offered in Pennsylvania are not 'necessary.'" the motion said. "Giant Eagle did not implement its mask policy in Pennsylvania because of safety; Giant Eagle implemented its zero-exception mask policy based on politics, convenience and 'to ensure consistency for everyone involved.'"

The motion quoted a manager from another Pennsylvania store who said the stricter policy was put in place to protect staff and prevent customers from falsely claiming disabilities to avoid wearing a mask. But even if the state guidelines made it possible to falsely claim a disability, they were not justification for flouting the ADA, the motion said.

"The policy is no different than a policy that would prohibit all shoppers from entering its stores accompanied by a dog; any dog – no exceptions. Perhaps it would just be too easy for shoppers to put a 'service dog' vest on their golden retrievers and claim that their pets are there to assist the customers," the motion said. "Such a policy would clearly violate the ADA, and Giant Eagle's mask policy also clearly violates the ADA."

The motion said that grocery stores were recognized as "public accommodations" that had to be accessible under the ADA, and that alternatives such as personal shoppers or curbside pickup were not a way to avoid the law's requirements.

Between being refused service and banned from his local grocery store, Kostek had met the criteria for showing that he'd been harmed by the policy, the motion said. It also said the policy was clearly an ADA violation, and Kostek was likely to prevail on the merits.

Counsel for Kostek and Giant Eagle declined to comment Thursday.

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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