The COVID-19 pandemic has resulted in an unprecedented number of public health measures being put into place across Canada. As employers try to stay on top of seemingly weekly changes to public health requirements, two recent decisions1 by the Alberta Human Rights Tribunal (the "Tribunal") provide support that mandatory mask policies and other COVID-19 related health and safety policies imposed in good faith for valid and legitimate business purposes have a good chance of being upheld.
Both cases involved retail stores in Alberta that imposed mandatory mask policies for customers and employees in response to the COVID-19 pandemic during Fall 2020. At the time, Alberta did not have mandatory masking public health requirements in place. The mandatory mask policies were unilaterally imposed by the retailers and required all customers to wear face masks while in the stores. One retailer's policy allowed customers who were unable or unwilling to wear a mask, to wear a face shield while in the store instead.
When the complainants tried to enter the stores without face masks, they were told by store employees that they needed to wear masks. Both complainants claimed they had disabilities preventing them from wearing face masks and sought to enter the stores. The retailers offered the customers alternative means of shopping, such as online or telephone shopping. When they refused to put face masks on, they were denied entry. Both complainants claimed discrimination based on disabilities that prevented them from wearing masks.
In both cases, the Tribunal found there was no question the mandatory mask policies had an adverse effect on certain persons with disabilities because the policies prohibited them from entering the stores. The question in both cases was not whether the individuals had disabilities that prevented them from wearing masks, but whether permitting customers to attend stores without wearing face masks would constitute undue hardship on the retailers.
The Tribunal explained that human rights laws accept that limitations on the right to be free from discrimination may be justified where three conditions are met:
- the limitation or rule is instituted for valid reasons;
- it is instituted in the good faith belief that it is necessary; and
- it is impossible to accommodate persons who may be adversely affected, without incurring undue hardship.
The Tribunal examined the purposes behind the mandatory mask policies and found that they were introduced for the valid purpose of protecting employee and public safety and were introduced in good faith. The policies developed by the retailers were also based on comprehensive scientific evidence. There was little doubt the retailers believed and could demonstrate the policies were reasonably necessary for the safety of employees and customers.
In both cases, the Tribunal agreed with the retailers that permitting customers to attend stores without wearing face masks would constitute undue hardship on the retailers. As a result, the mandatory mask policies were upheld by the Tribunal.
Human rights laws require a balancing of rights with the obligations of employers or service providers to accommodate the effects of a discriminatory policy, to the point of undue hardship. Employers drafting policies in an ever-changing landscape need to balance keeping employees and customers safe while avoiding policies that impose discriminatory restrictions.
Where policies impose discriminatory restrictions, the policies should have a valid purpose grounded in health and safety and be based on comprehensive scientific evidence. Based on these two decisions, when policies are enacted in good faith for health and safety reasons (i.e., protecting employees and customers), human rights tribunals may be more likely to find that discriminatory effects of those policies may be justifiably necessary.
Human rights laws across the country also necessitate exploring various options to accommodate. Simply imposing a policy for a valid health and safety purpose does not remove an employer's obligation to explore – often in creative ways – how someone could be accommodated. Pandemic-related policies should always seek to strike a balance of rights while being flexible and adaptable to evolving circumstances.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.