“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”, which the BC Human Rights Tribunal (“BCHRT”) has firmly stated in two recent screening decisions addressing complaints about mandatory masks in stores and workplaces.
Mandatory masks and the “anti-mask” movement have become hot button issues over the course of the COVID-19 pandemic. While the BC government made masks mandatory in indoor spaces in November 2020, previously some stores had already instated policies making face coverings a requirement. This has led to complaints from individuals claiming to have physical disabilities or religious beliefs that make them exempt from wearing a mask. Although the recent BCHRT decisions demonstrate that exemptions to the mandatory mask requirement do exist, they also make it clear that individuals should circumvent each other, but not the public health orders.
When Does an Exemption Apply?
There are exemptions to the mandatory mask rule for individuals unable to wear a mask due to “psychological, behavioural or health condition” or “a physical, cognitive or mental impairment.” However, if a person seeks protection under the BC Human Rights Code (“Code”), they will have to provide facts that establish their disability to the BCHRT. Claiming that masks create “breathing difficulties”, “health issues”, and “anxiety”, without evidence of an established disability, will not entitle a customer to accommodation or a remedy under the Code. Customers of retail stores will also have to show that a store’s conduct had an adverse impact regarding service and that their disability was a factor in the adverse impact.
Individuals seeking a remedy on religious grounds must establish that they have a sincerely held religious belief. In The Worker v. The District Managers, 2021 BCHRT 41, an employee refused to wear a mask because of his “religious creed” and was subsequently fired by his employer. The BCHRT found that he could not demonstrate a sincerely held religious belief and that “The Worker’s opinion that masks are ineffective is not a belief or practice protected from discrimination on the basis of religion.”
Responsibility of Retailers
As a retailer, confronting an individual entering a store without a mask can lead to a difficult situation. Some individuals may have a legitimate exemption but feel uncomfortable sharing sensitive personal information. The BC’s Office of the Human Rights Commissioner recommends that in a brief relationship, the best approach is to accommodate someone unable to wear a mask, and to not require medical evidence.
Be Kind, Be Calm, Be Safe
Wear your masks in indoor spaces, stay within your bubble, and register for your vaccination on the BC government’s online registration system!
COVID-19 continues to have a serious impact on both employees and employers, and we realize that changes to government programs and legislation can be difficult to keep up with. If you have any questions or would like advice about COVID-19 and how it affects your business, employees or employment, please contact Ryley Mennie, Lou Poskitt, or Connor Levy from our Workplace Law Group.
A special thank you to our articling student, Linette Lubke, for her contributions to this blog post!