By: Emily Zarychta, Articling Student, October 7, 2020

As employers, grocery and retail stores, schools, and many public services implement mandatory mask policies,[1] some people are wondering whether these policies violate their human rights. The answer, as with so many legal questions is – it depends.

Evidence indicates that masks help prevent the spread of COVID-19, a serious and sometimes fatal disease.[2] Public health organizations around the world, including Canada, recommend wearing a non-medical mask or cloth face covering, especially in situations where it is not possible to maintain a 2-metre physical distance from others.[3]

Stopping the spread of COVID-19 is a legitimate public health goal. However, if someone has a disability that prevents them from wearing a mask, which might include severe allergies, asthma, or respiratory disease, a mandatory mask policy could have a negative impact on them.

Under human rights law, people with disabilities have the right to be accommodated to the point of undue hardship. That may mean exempting them from the requirement to wear a mask, or finding other ways to accommodate their disability-related needs.

Personal preferences are not protected by BC’s human rights law. If someone simply prefers not to wear a mask, a mandatory mask policy will not likely violate their human rights.

Human Rights Law and the Complainant’s Case

To prove a violation of BC’s Human Rights Code (the “Code”),[4] a complainant must show three things:

  1. The complainant has a characteristic protected by the Code.

Protected characteristics include age, religion, and having a physical or mental disability, such as asthma, a respiratory disease, or a cognitive impairment. A personal preference not to wear a mask, however, is not a protected characteristic under the Code.

  1. The complainant experienced a negative impact in an area protected by the Code.

Protected areas include employment, tenancy, and access to services and facilities like buses, restaurants, and stores. An adverse impact would include being refused entry to a business or being denied service.

  1. The complainant’s protected characteristic was a factor in the negative impact.[5]

If someone’s disability was the reason they could not wear a mask and they were refused service on that basis, this connection would likely be made out.

If a complainant proves these three things, the employer or service provider can defend themselves by proving that their conduct was justified.

The Respondent’s Case: Justification and the Duty to Accommodate

If an employee or customer has been negatively impacted by a mandatory mask policy, the employer or service provider could justify their conduct by proving:

  1. There was a legitimate purpose for the policy.

Preventing the spread of COVID-19 and complying with public health orders would likely be seen as legitimate reasons for having a mandatory mask policy.

  1. They acted in good faith, believing the policy was necessary to achieving this purpose.

We expect that employers and service providers are acting in good faith to keep their staff and customers safe.

  1. The policy, and their enforcement of the policy, was reasonably necessary to achieving its purpose, and they could not accommodate the complainant without undue hardship.[6]

This last point is where an employer or service provider must focus their assessment.

Employers and service providers have a duty to accommodate people with disabilities to the point of undue hardship. If an employer, store or service has a mandatory mask policy that negatively impacts a person with a disability, they have a duty to take all reasonable and practical steps, short of undue hardship, to accommodate the person and remove the barrier. In every case, they must ensure that a person with a disability-related barrier to wearing a mask is treated with dignity and respect.

When determining whether a respondent has accommodated to the point of undue hardship, the Human Rights Tribunal would consider the health and safety risks of allowing someone to work or access the service without wearing a mask. If the respondent believes this would be an undue hardship, they must be prepared to explain why.

Employers should consider how employees who cannot wear a mask due to a disability can be accommodated in other ways. Perhaps they can work remotely or in an area of the workplace where physical distancing is more feasible. Service providers should also consider all possible and reasonable accommodations, such as phone or online ordering, curbside pick-up, or delivery options.[7]  Asking questions about the employee’s or customer’s needs and working together to create an accommodation plan is always the best practice.

Privacy and Stigma

A person is not required to share private details about their disability.[8] Medical information is highly sensitive and personal. While a person may have to identify that they have a disability in order to be appropriately accommodated, they should not be pressed for details about their condition.

Some people may judge or stigmatize those who do not wear masks at work or in public places. Employers must ensure that no one is harassed or bullied because they have a disability that prevents them from wearing a mask. Exemption cards or buttons may offer a means to identify and raise awareness that some people cannot wear masks due to a disability. However, these should remain voluntary.

Best practices for employers and service providers:

  1. Provide exemptions to the mandatory mask policy for people with disabilities, or provide other accommodations, to the point of undue hardship. Listen to the employee’s or customer’s needs and work with them to create an accommodation plan.
  2. Do not require verification or certification of someone’s disability (i.e. a doctor’s note or official diagnosis).
  3. Treat the person seeking accommodation with dignity and respect. Honour that it may be difficult to identify oneself as in need of an accommodation or exemption from a policy widely seen as important to protect health during the pandemic. Act with kindness and compassion.
  4. Inform staff of their obligations under the Human Rights Code. Businesses will likely delegate the duty of mask enforcement to frontline staff, but the business will remain liable for the discriminatory acts of its employees.
  5. Remind staff of the importance of maintaining a safe and discrimination-free workplace and of how to make a complaint if harassment or bullying is occurring.
  6. Provide free masks so that those without consistent access to a personal mask supply can still access the business or service.

Conclusion

Ultimately, unless a person has a disability that prevents them from wearing a mask, they likely do not have grounds for a human rights complaint. There is no duty to accommodate a personal preference.

If a person does have a disability that prevents them from wearing a mask, they must be accommodated to the point of undue hardship. While COVID-19 presents a real collective challenge to our public health, we must always strive to uphold and respect human rights.

Endnotes

[1] See CBC, “Where do you need to wear a mask in B.C.? Here are some places where they are mandatory,” last updated September 11, 2020, online:  <https://www.cbc.ca/news/canada/british-columbia/where-do-you-need-to-wear-a-mask-in-b-c-here-are-some-places-where-they-are-mandatory-1.5704700#:~:text=B.C.%20has%20no%20provincewide%20mandate%20for%20mask-wearing%2C%20but,Columbia%2C%20so%20too%20have%20policies%20on%20face%20coverings>.

[2] See Centers for Disease Control and Prevention, “CDC calls on Americans to wear masks to prevent COVID-19 spread,” July 14, 2020, online: <https://www.cdc.gov/media/releases/2020/p0714-americans-to-wear-masks.html>.

[3] Government of Canada, “Coronavirus disease (COVID-19): Measures to reduce COVID-19 in your community,” August 10, 2020, online: <https://www.canada.ca/en/public-health/services/diseases/2019-novel-coronavirus-infection/prevention-risks/measures-reduce-community.html#w>.

[4] Human Rights Code, RSBC 1996, c 210.

[5] Moore v. BC (Education), 2012 SCC 61, at para 33.

[6] British Columbia (Superintendent of Motor Vehicles) v. British Columbia (Council of Human Rights) [1999] 3 SCR 828  at para 20.

[7] Ontario Human Rights Commission, “COVID-10 and Ontario’s Human Rights Code – Questions and Answers,” March 18, 2020, online: <http://www.ohrc.on.ca/en/news_centre/covid-19-and-ontario’s-human-rights-code-–-questions-and-answers> at point 13.

[8] See Feldman v The Real Canadian Superstore, 1997 BCHRT 18, where a blind person succeeded in her discrimination complaint when a store refused her entry, accompanied by her harnessed and restrained guide dog, when she could not produce a certification card for the dog.