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Date:
2021.04.08

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THE EMPLOYERS' EDGE

B.C. Human Rights Tribunal “Unmasks” Unsubstantiated Discrimination Allegations and Delivers Common-Sense Decision on Masking Policies

A very recent screening decision out of British Columbia provides some welcome reassurance to businesses attempting to enforce masking requirements amid claims of so-called “medical exemptions” from employees and customers alike.

The complaint at issue in this decision arose after a customer was asked to wear a face mask in a grocery store. At the time, masks were not mandated by government order, but the store had a policy that required customers to wear a mask. A security guard stopped the customer and asked her to wear a mask. The customer told the guard that she was exempt from wearing one but refused to explain why, other than to say they “cause breathing difficulties.” The guard insisted that she wear one and the customer ultimately elected to leave the store.

The Customer alleged that, in requiring that she wear a mask, the store discriminated against her based on physical and mental disability. She refused to disclose to the Tribunal the basis of the disability or how it interferes with her ability to wear a mask. She further argued that the “sudden and arbitrary decision to force customers to wear masks is discriminatory” and that people should not have to give out personal health information to get daily essentials – both of which are, unfortunately, common complaints levied against businesses simply trying to keep their employees and customers safe during a global pandemic.

In its decision to dismiss the complaint, the Tribunal noted that it has received a large number of complaints alleging discrimination in connection with the requirement to wear face coverings indoors and, as such, was taking the unusual step of publishing a screening decision.

Steven Adamson, writing for the Tribunal, held as follows:

“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. Rather, the Code only protects people from discrimination based on certain personal characteristics, including disability. This protection is reflected in exemptions to mask‐wearing rules for people whose disabilities prevent them from being able to wear a mask or other face covering. Any claim of disability discrimination arising from a requirement to wear a mask must begin by establishing that the complainant has a disability that interferes with their ability to wear the mask.

In this complaint, the Customer refuses to say whether she has a disability. She simply says that wearing a mask makes it “very difficult to breathe” and “causes anxiety”. This explanation, on its own, is not enough to trigger the protection of the Code.  The Customer argues that her health conditions are private, and she should not be compelled to disclose them, to the Store or to this Tribunal. I agree that any disclosure of health information should be minimal and strictly limited to the purpose for which the information is required. However, whenever a person is asking for human rights‐related accommodation, they are required to bring forward the “facts relating to discrimination.”

As more masking complaints make their way through the adjudicative process, we expect to see further guidance regarding the information that can be reasonably requested by a service provider to establish a “masking exemption.” Until then, it is certainly refreshing to see a frank, common-sense decision out of a human rights tribunal.

An important caveat for our Ontario readers is that municipal bylaws may and often do stipulate that service providers cannot request information or documentation regarding an exemption.

As always, the team at CCPartners will continue to update our readers and listeners on all other pertinent developments regarding benefits and legislative changes related to COVID-19 through our Employers’ Edge Blog and Lawyers for Employers Podcast series.

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