BCHRT screening decision addresses customer denied service based on refusal to wear mask due to alleged disability

On March 31, 2021, the British Columbia Human Rights Tribunal (the “Tribunal”) issued a decision that provides guidance on the human rights considerations surrounding mandatory mask policies. Section 8 of the BC Human Rights Code (the “Code”) prohibits discrimination on the ground of physical or mental disability without a bona fide and reasonable justification. In The Customer v The Store, 2021 BCHRT 39, the Tribunal considered whether a grocery store contravened the Code by denying a customer entry because she refused to wear a mask.

Background

On September 28, 2020, the customer visited her local grocery store. The security guard at the door stopped her because she was not wearing a mask. Although this incident occurred before the BC government implemented a mandatory mask order, the store had implemented its own mask-wearing policy. The guard told the customer that she could either put on a mask or leave. In response, the customer said that she was exempt from wearing a mask because they “cause health issues”. The guard asked what the customer’s health issues were. The customer responded that they were private. The customer said there were exemptions for health matters, that there was a duty to accommodate, and that health matters or disabilities were covered under the Code. She explained that “these things cause breathing difficulties, and [she] was therefore exempt.” The guard stood firm on the mask requirement, and the customer left. She later filed a complaint that the store discriminated against her based on physical and mental disability, in violation of section 8 of the Code.

The Tribunal’s Decision

According to its normal process, the Tribunal assessed the complaint to ensure that it related to a possible human rights violation (also known as screening). Usually, decisions relating to screening are not published, but the Tribunal decided to publish this decision because of the large volume of similar complaints and the public interest in the issue. However, the Tribunal also opted to anonymize the name of the customer and the store to protect the parties’ privacy.

When the Tribunal screened the complaint, it concluded that the complaint did not set out a possible contravention of the Code. Although the customer identified how she was adversely impacted – she was unable to enter the store because she refused to wear a mask – she did not set out facts which, if proved, could establish that she had a physical or mental disability that contributed to the adverse impact. The Code, the Tribunal explained, 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 protects people from discrimination based on certain personal characteristics, including disability. In this case, the customer had the responsibility of establishing that she had a disability that interfered with her ability to wear a mask. When the Tribunal asked the customer to provide more information about the nature of her alleged disabilities and how they related to her inability to wear a mask, she simply responded “it is very difficult to breathe with masks, and it causes anxiety”. This explanation was not enough to trigger the protection of the Code, and the Tribunal declined to proceed with the complaint.

As a final point, the Tribunal commented on an individual’s right to keep their health information private in this context. The customer claimed that her health conditions are private, and that she should not be compelled to disclose them, either to the Store or the Tribunal. The Tribunal agreed that any disclosure of health information should be strictly limited to the purpose for which the information is required, but emphasized that when a person requests a human rights-related accommodation, they are required to bring forward the facts connected with the discrimination. In the context of the Tribunal considering a complaint, the customer’s disclosure that “specific mental and physical disabilities are private matters” was not enough for the Tribunal to proceed. The Tribunal added, however, that it had not yet considered how much information a customer must give a retailer to qualify for a mask-related accommodation. It left that question to be decided in another case where the issue was argued fully. The Tribunal noted that the BC Office of the Human Rights Commissioner had made the following recommendation in the policy guidance document “A human rights approach to mask-wearing during the COVID-19 pandemic” (at page 6):

Where the relationship is brief, I recommend duty bearers accommodate those who are unable to wear masks without requiring them to provide medical information, as this is sensitive personal information.

It is not clear, however, whether this recommendation fully considers or balances the safety risk of allowing a person access to premises without a mask. Of course, it is also possible to accommodate a person who claims they cannot wear a mask due to a disability in other ways, for example, by providing curb-side service or offering to deliver. This is, of course, a topic for another post.

Takeaway for Employers

The Customer v The Store demonstrates that, before the Tribunal will accept a human rights complaint, a complainant must set out facts that, if proven, can establish a potential violation of the Code. Here, the customer’s claim that mental or physical disabilities are private matters was not an answer to the requirement that she bring forward the “facts relating to discrimination”. How much medical information a customer must give a retailer to qualify for mask accommodation, however, remains an unanswered question. In the meantime, the Tribunal points to the BC Office of the Human Rights Commissioner’s recommendation that people unable to wear masks should be accommodated without having to provide medical information, particularly where the relationship is brief, which is not particularly helpful to employers and businesses who have to deal with this issue frequently. Until there is greater certainty regarding this issue, employers and businesses should consider whether there are other safer means of accommodating persons who claim they cannot wear a mask for medical reasons. 

If you have any questions about this decision, please contact one of the members of McCarthy Tétrault’s Labour & Employment team.

COVID-19 Human Rights Tribunal BC Human Rights Tribunal

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