Vaccines and Human Rights
On August 23, 2021, BC’s Public Health Officer announced that proof of vaccination would be required for people to attend certain social and recreational settings and events. More information, including the list of venues covered by the requirement, is available here and here.
We understand that some people are concerned about these new requirements, particularly the lack of vaccination exemptions due to medical or religious reasons. At this time, we are unable to respond to the volume of calls and emails we have received about these issues. When the PHO’s final order is made public, we will provide updated information.
Masks and Human Rights
On November 24, 2020, BC’s Minister of Public Safety and Solicitor General ordered that all individuals must wear a face mask in all indoor public spaces, including in retail stores and in workplaces (in shared common areas of office buildings).
The order includes exemptions for:
- children under 12 years old;
- anyone who is unable to wear a mask because of a health condition or impairment;
- anyone who is unable to put on or remove a mask without help from another person.
The order’s medical exemption reflects the provisions of the BC Human Rights Code. When a person cannot wear a mask for medical reasons, but still wants to access a service normally available to the public, the service provider has a duty to accommodate that person to the point of undue hardship.
These FAQs have been created to help service providers and people seeking services understand their rights and responsibilities around the requirement to wear a mask. It is for general informational purposes only and does not constitute legal advice.
The law can change. As human rights tribunals and courts make decisions on these issues, we will do our best to update the information we provide. However, we cannot guarantee that these FAQs reflect the current state of the law.
Masks and Human Rights
FAQs for Customers Seeking Accommodation
A: Not necessarily. The Government of BC has issued a mandatory mask order requiring masks be worn in all public indoor spaces. The order contains some exemptions, including for people who cannot wear a mask due to a disability.
As a service provider, a business has a duty to accommodate people with disabilities to the point of undue hardship. This means the business must take all reasonable and practical steps to remove barriers people with disabilities may face when trying to access their services.
The service provider also has a duty to keep its staff and other customers reasonably safe from the threat of COVID-19 transmission. Therefore, it could be an undue hardship for the service provider to allow you to enter their premises without a mask in some circumstances.
Human rights law says that people are not entitled to a perfect accommodation, and should be prepared to agree to a reasonable proposal from a service provider. A reasonable accommodation may be something short of you getting full and unrestricted access to the normally-provided services. For example, instead of letting you enter a store without a mask on, the business may ask that you order a product ahead of time and collect it outside the business. This could be a reasonable accommodation in some circumstances.
A: So far, the BC Human Rights Tribunal has not made any decisions relating to mask exemptions for people with disabilities. This means we do not have any clear guidance on what a reasonable accommodation should look like, or when the point of undue hardship has been reached.
Nonetheless, many service providers have found creative ways to accommodate customers with disabilities who cannot wear a mask. Some solutions might include serving you outside or in a better ventilated area, asking you to come back at a particular time when fewer staff and customers are around, or accessing services by telephone or online.
A: Typically, no. The service provider should work with you to find an accommodation without needing your medical information. However, if you are a regular user of the service, you could choose to give them some medical information to help reach a reasonable accommodation plan.
You will have to share medical information if you file a complaint with the BC Human Rights Tribunal. This is because you will have to prove to the Tribunal that you have a disability, and that your disability prevented you from safely wearing a mask.
A: A good first step would be to notify a staff member that you have a disability that prevents you from wearing a mask, and you are therefore exempt from the mask requirement. You could then ask what they are able to do to ensure you can still access their services.
Some businesses will have established policies for accommodating people with disabilities, while others may take a more case-by-case approach. In either case, businesses should
make genuine efforts to work with you to reach a reasonable accommodation once they learn that you cannot safely wear a mask due to your disability.
A: Service providers that say they are not able or willing to accommodate a person with a disability may be in violation of the BC Human Rights Code. You might choose to inform them of this yourself and discuss the duty to accommodate with them. Materials published by the BC Human Rights Commissioner could help you to have this conversation.
Remember that the Code covers a wide range of different types of service providers, including retail stores, restaurants, doctor’s offices, hair salons, and strata councils. Whether a service provider can safely provide services to people who are not wearing masks may depend on the type of service provided.
If you think you have been denied a service contrary to the BC Human Rights Code, you may choose to file a complaint with the BC Human Rights Tribunal. This is a formal legal process. You may be able to reach a resolution of your complaint with the help of a Tribunal mediator. If not, the Tribunal will make a formal decision on whether or not you were discriminated against by the service provider.
It is often a good idea to try to resolve the issue yourself before filing a complaint with the Tribunal. The Tribunal process can take a very long time and can be stressful to go through, and there is no guarantee that you will be successful.
A: You can file a complaint with the BC Human Rights Tribunal by completing a Form 1.1 complaint form. If you are filing on someone else’s behalf you should complete a Form 1.2 as well as a Form 1.1 to be authorized as their representative.
A: To prove your case, you will need to convince the Tribunal that you have a disability covered by the Code (a “protected characteristic”), that you suffered some negative impact because of the service provider’s actions (“adverse impact”), and that the adverse impact is connected in some way to your disability (“nexus”). This is called the “complainant’s case”.
A disability covered by the Code must be something relatively serious or severe that interferes with your ability to function in some way. Conditions like asthma, COPD, and diagnosed mental health conditions like PTSD and anxiety disorders have all been recognized as disabilities under the Code.
An “adverse impact” might include being denied entry to a store, or being refused service by a service provider. However, if you were able to access the service in some other way (for example, by placing an order online and picking up the item from outside the store), you might have trouble proving there was any “adverse impact”.
To prove a “nexus” between your disability and the adverse impact, you’ll have to prove that your disability was connected to, or a factor in, the adverse impact. If you were denied service because you couldn’t wear a mask due to a disability, the nexus would likely be established.
A: Once a complainant has made out their case (see above), the service provider has the opportunity to try and justify their conduct. The respondent may argue that they did try to accommodate you, they offered you a reasonable accommodation, and that doing more would have resulted in an undue hardship for their business.
A: Both parties will have to share whatever evidence they have that is relevant to the complaint. This is called “disclosure”. You will need to provide evidence that shows that you have a disability, and that your disability prevents you from wearing a mask. If you cannot show this then your complaint may be dismissed. The service provider should provide any evidence that shows how they tried to accommodate you.
If your complaint reaches a Tribunal hearing, a Tribunal Member will hear from the parties, weigh the evidence, and make a decision about whether you have proved your case of discrimination. If they agree that you were discriminated against, the Tribunal may award remedies for the discrimination, such as compensation or an order that the respondent not discriminate in future.
Most complaints do not reach the hearing stage and are resolved through mediation. The Tribunal offers free mediation services as part of its process. Some complaints are also dismissed without a hearing through the Tribunal’s Application to Dismiss process.
A: No – both the mask mandate exemption and the duty to accommodate only apply to people who are unable to wear a mask for medical reasons. This means that you must follow the requirements of the mask order, unless you have a disability that stops you from safely wearing a mask.
FAQs for Business Owners and Staff
A: You must make your services reasonably available to people who cannot wear a mask due to a disability.
A customer may be exempt from the requirement to wear a mask if they have a health condition that prevents them from wearing a mask safely. Under human rights law, you have a duty to accommodate that person to the point of undue hardship. We recommend that you work with the customer to try to find a way to safely offer them your services.
The exemption does not cover a person who refuses to wear a mask simply because they do not want to or because they forgot to bring one.
If a person tries to enter your business without a mask, it would be a good idea to ask them whether they have a medical condition that prevents them from safely wearing a mask. This opens a dialogue and allows you to work with them to try to reach an accommodation if they have a disability.
A: In a service provision context, typically no. For one-off or short-term interactions, the best approach is usually to trust the person who is claiming a medical exemption. This is the approach supported by the BC Human Rights Commissioner.
In the case of longer term relationships, where a person is a regular user of the service you provide, you may want to ask them for medical information to help you reach an appropriate accommodation. In these cases, you may want to seek some independent legal advice to help you navigate what is appropriate to ask for. Medical information is highly private and sensitive material.
If a dispute arises and a person files a complaint with the BC Human Rights Tribunal, the person will have to satisfy the Tribunal that they have a disability that prevents them from safely wearing a mask. This process may involve the disclosure of medical records and any other information that is relevant.
A: Maybe. Service providers have a duty to accommodate people with disabilities to the point of undue hardship. Whether a service provider has met the point of undue hardship will depend on the facts of each case. It is not likely that service providers will be expected to provide services in a way that puts them or others at undue risk of infection. In some cases it may be unduly risky to offer services in a normal way to someone who is unable to wear a mask.
Accommodation is often an exercise in compromise. The person requesting accommodation is not entitled to a perfect accommodation, and should be prepared to accept a reasonable solution. A reasonable solution might mean providing services in a different way than usual.
A: As above, meeting your duty to accommodate is often an exercise in finding a reasonable compromise. A good solution will take into account your duty to accommodate the person with the disability, as well as your duties towards your staff and other customers.
A: There is no one-size-fits-all approach to what an appropriate accommodation looks like. Human rights law requires you to take reasonable and practical steps to remove barriers people with disabilities may face in trying to access your services.
Some options you can explore with the customer may include serving them outside or in a better ventilated space, asking them to come back at a less busy time, or offering telephone or online services and curbside pick-up.
It may be the case that accommodating someone would cost you more money or be less convenient than normal. Unless it amounts to an undue hardship, moderate increased cost or inconvenience are not valid reasons for refusing to accommodate a person with a disability.
A: In some cases you might feel that, despite your best efforts, there is no way to safely accommodate a person who cannot wear a mask. This may mean that you cannot agree on an accommodation plan that suits the person seeking an accommodation, or cannot safely offer any services at all.
It is always possible that the person who was seeking an accommodation will file a complaint with the BC Human Rights Tribunal. At a Tribunal hearing, you will need to prove you took reasonable and practical steps to accommodate the person with the disability. You will need to show why doing anything more would have been an undue hardship for your business.
If you are named as a respondent to a complaint, we recommend you seek independent legal advice. The Law Centre at the University of Victoria may be able to offer you some free legal advice.
A: Employers are responsible for the conduct of their employees. If one of your staff does something that discriminates against a customer with a disability, the company will be held liable for their actions.
We recommend that you develop a clear policy on accommodating people who cannot wear masks for medical reasons. Decide how you can accommodate people seeking your services who cannot wear masks. See our suggestions above. Train your staff on the policy, and make sure they understand what to do if someone seeks service while not wearing a mask. Equip them with tips and strategies to de-escalate a challenging situation, where necessary. Consider having a supervisor or manager deal with all accommodation requests, if you can, rather than leaving it to less senior staff.