Since the introduction of the governmental mandate on masks (Ministerial Order No. M012, s. 3), we have all heard of individuals and groups refusing to comply with the order, due to it allegedly violating their “rights”. Presumably, these anti-maskers are referring to their rights ascribed in the British Columbia Human Rights Code (the “Code”), pursuant to section 8 of which, services or facilities which are customarily availability to the public, must not discriminate against a person because of, inter alia, their physical or mental disability.
The British Columbia Human Rights Tribunal (the “Tribunal”) came head-to-head with this issue in a decision released March 31, 2021, indexed as The Customer v. The Store, 2021 BCHRT 39 (the “Decision”). The Decision contemplated a complainant who was denied entry to a grocery store by a security guard who cited the complainant’s failure to wear a mask. The complainant told the guard she was exempt from wearing face coverings, explaining only that they “cause breathing difficulties”. She refused to provide more specific information. She said her health issues were private and that the store had a duty to accommodate. Ultimately, she was denied entry for failing to wear a mask, which prompted her to complain to the Tribunal that the store violated section 8 of the Code.
The Decision is a screening decision; meaning the Store had not yet been notified of the complaint, and the Tribunal was deciding whether to proceed with a hearing on the merits. The complainant disclosed no evidence about having a specific mental or physical disability. She refused to provide further information to the Tribunal regarding her disability and how it interferes with her ability to wear a mask, and ultimately amended her claim to say “it is very difficult to breath with masks, and it causes anxiety”. In light of this, the Tribunal did not proceed with the complaint.
Steven Adamson, writing the Decision, specifically noted that since October 2020, the Tribunal had received a large volume of complaints relating to discrimination by service providers refusing to accommodate people who cannot wear masks. The facts of the complaint are interesting in that they relate to an issue faced by businesses every day.
But what’s a business to do? Most often it has insufficient information to assess whether a patron indeed has a verified disability, and pressing for more information may only worsen the discrimination.
The Tribunal makes it clear: “The Code does not protect people who refuse to wear a mask as a matter of personal preference, because they believe wearing a mask is “pointless”, or because they disagree that wearing masks helps to protect the public during the pandemic”. Any alleged violation of the Code will require a complainant to establish they have a disability that interferes with their ability to wear a mask. The Code protects disabilities; not preferences. In another screening decision, issued April 8, 2021, indexed as The Worker v. The District Managers, 2021 BCHRT 41, the Tribunal considered a worker who refused to wear a mask, citing his “religious creed.” Mr. Adamson did not accept this complaint. Rather, he found that the Worker had not set out the facts that could establish that his objection to mask-wearing was grounded in a sincerely held religious belief. The Tribunal stated that a belief that wearing a mask does not stop the transmission of COVID-19, is not a belief protected by the Code.
The Tribunal has not offered specific guidance as to how much information a customer is required to give a business in order to qualify for an accommodation, although we expect it will require a balancing of the customer’s right to privacy and the customer’s requirement to bring forward the “facts relating to discrimination”. A balanced and reasonable approach is necessary, but an individual should advise the business, at a minimum, that a protected ground, such as a disability, is engaged such that the duty to accommodate is triggered.
The BC Office of the Human Rights Commissioner, recommends, pursuant to its publication entitled “A human rights approach to mask-wearing during the COVID-19 pandemic”, that where the relationship is brief, the “duty bearers accommodate those who are unable to wear masks without requiring them to provide medical information, as this is sensitive information”. On a poster entitled “Exemptions to the mandatory mask order in British Columbia” the Commissioner notes that “If a person claims a mask exemption, take them at their word. Proof should not be required.”
While the Commissioner’s statement may be hard to reconcile with the information a business may feel it is entitled to receive, the takeaway suggests that if someone says they have a medical issue prohibiting them from wearing a mask, the safest course of action for a business is to them at their word and permit them entry.
The standard of what an individual must prove at a hearing is different than it is when they request an accommodation. Businesses may find solace however, in understanding that should they refuse to allow entry to a non-mask wearing individual, on account of not believing they have a corresponding disability, the customer will be unable to advance an effective complaint should they indeed be without a legitimate disability.
While this may certainly present as a frustrating position for businesses, they should take comfort in the Commissioner’s position that business owners cannot be fined for allowing people without masks to enter their place of business.
If you have any questions concerning the management of accommodations in your workplace please do not hesitate to contact any member of our employment group.