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Lawsuit against Giant Eagle awaiting decision

Customers say mask mandate violates ADA

An injunction request filed by more than 30 customers of Giant Eagle stores, who contend their rights under the Americans with Disabilities Act have been violated by the store’s policy requiring facial coverings while shopping, is now awaiting a decision by a U.S. District Judge in Pittsburgh.

Judge Nora Barry Fischer in the past week received the final legal briefs on the controversial issue from Pittsburgh attorneys Thomas B. Anderson, representing the customers who contend the facial-covering policy initiated in response to the COVID-19 pandemic is injurious to their health, and Jonathan D. Marcus, who represents the grocery store chain that operates stores throughout western Pennsylvania, Ohio, Indiana and West Virginia.

The requirement that all customers wear masks or other forms of facial covering while shopping at Giant Eagle applies only to the chain’s Pennsylvania stores.

Giant Eagle stated in its legal brief filed Monday that the policy was initiated in Pennsylvania due to the large number of COVID-19 cases in the state — more cases than in the other three states combined.

The most recent legal brief on behalf of the medically-disabled customers charged that in May, Giant Eagle was about to alter its alleged discriminatory policy but backed off due to threats by the union representing its Pennsylvania workers that if the policy was withdrawn, it would file an unfair labor practice charge.

The company denies that claim, stating that the mask mandate was put in place because of “Giant Eagle’s concerns about the health of its front-line team members and other customers, or the now overwhelming view of doctors and scientists that face coverings are one of the most effective means of slowing the spread of COVID-19.”

The brief filed on behalf of the customers contends that Giant Eagle has violated America’s landmark civil rights legislation, the Americans for Disabilities Act, as well COVID-19 regulations issued by the Pennsylvania Department of Health, by initiating a policy that provides no exceptions.

“The emergence of COVID-19 did not suspend the ADA. Giant Eagle cannot legitimately argue that telling customers with disabilities that prevent them from wearing masks they must stand outside and allow employees to select their groceries for them, while nondisabled customers can select their own items inside the store. ..,” the customers’ brief stated.

Plaintiffs who have filed lawsuits against Giant Eagle include customers from stores in Roaring Spring, Bedford, Ebensburg, Northern Cambria and Johnstown.

While the ADA legal struggle hasn’t received a great deal of media attention, at least one Pittsburgh resident who became aware of the case via a television broadcast decided he wanted to give his opinion on the subject.

Lee Feldman, a retired physicist who worked for the Navy and who said he lives on Pittsburgh’s South Side, filed the only friend-of-the-court legal brief in the case so far.

He came down on the side of wearing masks and contended in his brief, “Neither the Constitution nor the ADA authorize anyone to commit a crime. … Choosing not to wear a mask in the presence of other people becomes a crime, reckless endangerment.”

In a telephone interview Thursday, Feldman said he is not associated with the workers’ union or the Giant Eagle Corp., and he noted he doesn’t even shop at Giant Eagle — although his wife sometimes goes there.

As a citizen, he is upset because he sees people eating at restaurants with no masks.

“Everybody wonders why people are getting sick,” he said. “If you wear a mask, you can control the disease. Without a mask, there is no control. … That’s my opinion,” Feldman stated.

He said in his brief that social distancing does not protect against the virus because it (the virus) can be in the air.

“A mask is the only effective way to avoid ingesting the virus,” he wrote to the judge.

The issue in the present case, Anderson stated in his legal brief, is how public accommodations like Giant Eagle grocery stores must take “necessary and reasonable steps” to provide disabled guests the same experience that nondisabled guests experience.”

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