COVID-19 continues to be an issue in Canada and abroad. To protect staff, clients, and customers, many businesses have implemented mandatory mask policies applicable to anyone who enters their premises, including employees, visitors, and clients. While mandatory vaccines are currently the focus of much discussion, mask mandates continue to be challenged in a number of businesses. Some have brought legal challenges, claiming a business cannot impose a mask mandate, especially with respect to people who may have a medical disability that interferes with wearing a mask. However, some businesses have put plans in place to offer alternative accommodations in the event of a disability.

In a recent decision of the Alberta Human Rights Commission, a customer of a retail business claimed that a business’s mandatory mask policy was discriminatory, despite being offered an alternative to a mask. The tribunal had to weigh the human rights considerations along with the business’s efforts at providing reasonable accommodations. Although this is an Alberta case, the same reasoning could be applied to other provinces in Canada, including Ontario in the event of a challenge to Covid protocols by either clients or employees.

Customer Refuses Mask Due to Disability, and Further Refuses Alternate Accommodation

The business in question is a large retail establishment with locations throughout Canada. The business had implemented a mandatory face mask policy and instructed employees to both follow and enforce this policy and make sure customers were aware of it. The complainant, a customer of the store, identifies as having a disability that prevents him from wearing a face mask.

On the day in question, the complainant entered the store and an employee informed him that he was required to wear a mask. The complainant told the employee that he had a disability and could not wear a mask as a result. The store had anticipated this scenario and offered the complainant a face shield as an alternative to a mask. The complainant refused the face shield and a disagreement ensued. The complainant was ultimately removed from the store.

The Complainant Filed a Human Rights Complainant

The complainant filed a claim against the business under the Alberta Human Rights Act. The complainant alleged that the businesses’ refusal to allow him to enter the store without a mask or an alternate face shield infringed on his rights. He further claimed that the face shield was not a reasonable alternative, because it did not protect against COVID-19 transmission. The complainant also argued that requiring him to wear a face shield, as an alternative to a mask, would stigmatize him.

The business’s position was that it had implemented the mandatory mask policy in response to the public health emergency and associated protocols. The business stated that it implemented the policy to protect both its employees and customers. The business also stated that the policy was mandatory, but that if there were individuals who refused to wear a mask or could not wear a mask, a face shield was offered as an alternative. For those customers who still refused any type of face covering, they had the option of completing their shopping online, which offered various home delivery options.

A human rights investigator reviewed the submissions of the parties. The investigator then recommended that the complaint be dismissed. The Director of the Human Rights Commission accepted the investigator’s recommendation and dismissed the complaint.

The complainant then filed a request for a review of the Director’s decision before the province’s Human Rights Tribunal.

Tribunal: Businesses Can Impose Mask Policies, With Reasonable Accommodations

The Tribunal found that there was no question that the mask policy had an adverse impact on individuals with certain disabilities. On its face, this mandatory face mask policy limited the rights of persons who could not wear a face mask because of a disability. However, the inquiry did not end there;

The tribunal had to apply a test to examine whether, in a discrimination action, there was a reasonable basis in the evidence for proceeding to a hearing before a Tribunal. The Act and jurisprudence outlined that discrimination may be justified in certain situations, as follows:

• The policy, rule, or limitation is instituted in the good faith belief that it is necessary;
• The rule or limitation is introduced for a valid reason; and
• If it is not possible to accommodate persons who may be adversely impacted by the policy without incurring undue hardship.

The last aspect of the test concerned the respondent, in this case the business, showing they have considered the least intrusive options and made every effort to accommodate the complainant’s disability-related needs, short of undue hardship.

The tribunal found that the business had implemented the mandatory policy for a valid business and safety purpose. The tribunal also found that the public health regulations, and the public health and epidemiological information provided by the business, established that the restrictions were reasonable and justifiable.

[T]he provincial and municipal public health regulations neither allowed the complainant to enter the store unmasked, nor did they prevent the respondent from instituting its COVID-19 health and safety policy. There is nothing in those regulations that prohibits businesses from requiring the use of face masks by employees or customers, and indeed both specifically provide that businesses may institute their own policies. Subject to specific prohibitions, there is nothing in the public health regulations that “exempted” the complainant from complying  with the respondent’s policy.

Accordingly, the human rights tribunal upheld the decision of the Director and found there was no reasonable basis to proceed to a hearing.

Contact Grosman Gale Fletcher Hopkins LLP in Ontario for Regarding Mandatory Mask Policies for Employees and Customers

Many businesses have adopted mandatory policies that require that both employees and customers wear face masks while on business premises. Tensions continue to persist regarding whether those policies are compatible with employment and human rights law. However, so long as the policies are in line with public health directives and reasonable accommodations are provided for those who cannot comply due to a protected human rights ground, it appears that they will be permitted to stand.

For advice about mandatory mask policies, COVID-19 workplace policies, employer liability, employee rights and other employment or labour law matters, contact the offices of Toronto employment lawyers Grosman Gale Fletcher Hopkins LLP. We regularly advise workplace parties on a wide range of legal workplace issues. Contact us online or by phone at 416-364-9599 to schedule a consultation.