BCHRT screening decision addresses worker denied entry to workplace based on his refusal to wear mask due to alleged religious reasons

On April 8, 2021, the BC Human Rights Tribunal (the “Tribunal”) issued another screening decision providing guidance on human rights considerations and mandatory mask policies. The Tribunal previously decided that a customer who claimed they could not wear a mask in a store had to show some medical evidence to the Tribunal to prove they had a disability under the BC Human Rights Code (the “Code”).

In the Tribunal’s newest published screening decision, The Worker v. The District Managers, 2021 BCHRT 41, the Tribunal considered whether an employer had contravened the Code by denying an employee entry because he refused to wear a mask on religious grounds.

Background

Since November 24, 2020, a ministerial order has been in place requiring British Columbians to wear face coverings indoors, subject to some exemptions. During that time, an employee (the “Worker”) came to work but refused to wear a mask, claiming it was against his “religious creed”. The Worker was not allowed in the workplace without a mask and his employer (the “District”) subsequently terminated his employment. The Worker filed a complaint against the District managers alleging discrimination on the basis of religion (the “Complaint”).

The Tribunal’s Decision

Like The Customer v. The Store, the Tribunal’s decision in The Worker v. The District Managers is a screening decision, in which the Tribunal determined whether the complaint raised a possible human rights violation and should be accepted.

After considering the Complaint, the Tribunal determined that the Complaint raise a possible contravention of the Code. The Worker’s religious belief was that “we are all made in the image of God, a big part of our image that we all identify with is our face. To cover-up our face arbitrarily dishonors God.” He believed that the mask requirement infringed on his “God given ability to breath [sic]”. Additionally, he did not believe mask wearing was effective, stating, “forced mask wearing does not help protect anyone from viruses”.

Based on these statements, the Tribunal found the Worker’s objection to wearing a mask was not religious in nature. Under human rights legislation, protection of a religious belief or practice is triggered when a person can show that they sincerely believe that the belief or practice (a) has a connection with religion, and (b) is “experientially religious in nature”.

The Worker’s opinion that masks were ineffective could not support a finding that wearing a mask is objectively or subjective prohibited by any particular religion or that wearing a mask “engenders a personal, subjective connection to the divine or the subject or object of [his] spiritual faith”.

Instead, the Worker’s objection was that wearing masks was arbitrary because he believed it did not stop the transmission of COVID-19. 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. For these reasons, the Tribunal found that the Complaint did not set out a possible contravention of the Code. It did not proceed with the Complaint.

Takeaway for Employers

The Worker v. The District Managers reinforces that a non-religious belief, opinion or preference is not protected by the Code. The decision found that if a purported religious belief is to receive human rights protection, the belief must (a) be sincerely held, (b) be required by the religion, and (c) be “experientially religious in nature”. If an employee’s refusal to wear a mask is based on a belief that does not meet these criteria, it will not constitute discrimination based on religion, and the employer will not have a duty to accommodate the employee.

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

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