As a result of COVID-19, many businesses have developed and implemented mandatory masking policies. The Alberta Human Rights Tribunal recently dismissed two complaints of discrimination relating to such policies. Both complainants had refused to wear a face mask, claiming their disability prevented them from doing so, and were refused entry to the business’ premises.

Background

In Szeles v Costco Wholesale Canada Ltd., 2021 AHRC 154, on arriving at the store, Mr. Szeles was told that a face mask would be required to enter Costco. When Mr. Szeles indicated that his disability exempted him from Costco’s mask policy, he was offered a face shield as an alternative. Online shopping and home delivery were also provided as options. Mr. Szeles refused all the options offered to him and, following an altercation, was removed from the store.

In Beaudin v Zale Canada Co. o/a Peoples Jewellers, 2021 AHRC 155, the jewelry store refused to allow Mr. Beaudin to enter unless he put on a face mask. Mr. Beaudin explained he was exempt from the store’s policy because of health reasons. Peoples Jewellers offered alternatives, such as telephone and online shopping and curb-side pickup, but Mr. Beaudin rejected them. As a result, the store asked Mr. Beaudin to leave.

After being denied entry, both complainants alleged the respondent stores discriminated against them in the area of goods, services and accommodation on the ground of physical disability, in contravention of Section 4 of the Alberta Human Rights Act. Additionally, Mr. Szeles argued that denying entry to a person who cannot wear a face mask and offering other options short of unrestricted entry did not amount to reasonable accommodation. He also claimed that face shields were not a reasonable alternative because they did not offer protection against transmission of COVID-19, and would stigmatize him by singling him out as a person with a disability. Mr. Beaudin argued that, at the time, there was no mandatory public health requirement in place that supported the policy.

The two complaints were reviewed and dismissed by the Director of the Alberta Human Rights Commission. In each case, the complainant filed a Request for Review of the Director’s decision.

Decisions

In both cases, the Tribunal acknowledged that mandatory masking policies have adverse impacts on persons who have disabilities that prevent them from using face masks. However, the Tribunal noted that limitations to the right to be free from discrimination may be justified where:

(a)    The limitation or rule is instituted for valid reasons;

(b)     It is instituted in the good faith belief that it is necessary; and

(c)     It is impossible to accommodate persons who may be adversely affected, without undue hardship.

The Tribunal found that the mandatory masking policies were designed to protect the health and safety of employees and the public, which constituted a legitimate business purpose. Further, public health guidance and epidemiological research established that such restrictions were reasonable and justifiable in the circumstances, and the public health regulations did not prevent businesses from instituting their own COVID-19 health and safety policies. Importantly, both respondents had provided alternatives to accommodate those unable to wear face masks. The Tribunal held that allowing people to enter stores without face masks would cause undue hardship. As a result, the Tribunal was unable to find a reasonable basis to have the complaints proceed to a hearing and upheld the dismissals.

Takeaway for employers

While employers and service providers must accommodate the effects of a discriminatory policy to the point of undue hardship, human rights law is a balancing act. Health and safety are important factors that must be considered in any balancing exercise conducted, particularly in the context of COVID-19.

While these decisions did not consider employee complaints, the underlying reasoning is equally applicable to employers who implement masking policies. Those employers who have decided to implement a masking mandate, even where it is not mandated by the province, may reasonably seek to rely on the scientific evidence that masking reduces transmission and, therefore, protects the health and safety of employees and others in the workplace, to provide justification for their policy, subject to the duty to accommodate to the point of undue hardship.

Further, as long as reasonable alternatives are offered, employers can likely take a hard-lined approach requiring masks for all individuals entering the workplace in order to ensure the health and safety of all employees. We note, however, that as is the case with all policies implemented in the context of COVID-19, the need for such policy must be re-evaluated on a regular basis in light of the risks and science present at any given time.