Shortly after COVID-19 crested upon British Columbia’s shores, businesses began implementing mandatory mask policies for customers and employees alike. Since then, wearing face masks in indoor public settings has been made mandatory, voluntary, and then mandatory again by order of the Provincial Government, and WorkSafe BC has required businesses to implement COVID-19 safety plans. Additionally, the British Columbia Human Rights Tribunal (the “Tribunal”) has been inundated with human rights complaints from employees and customers alike, alleging that mask requirements infringe their rights under the British Columbia Human Rights Code (the “Code”). This article aims to summarize the Tribunal’s published decisions on these complaints to date and to outline the five key takeaways from those decisions.
1. No Complaint Regarding a Mask Requirement Has Succeeded at the Tribunal
The Tribunal has published six decisions involving complaints where the primary allegation was that a mask policy was discriminatory under the Code. In each of those decisions, the complaints were dismissed prior to a hearing.
Does this mean that all mask complaints are destined to fail? Of course not. In fact, the Tribunal’s decisions make clear that, if a complainant (a) has a protected characteristic under the Code, (b) suffers an adverse impact as a result of mask policies, and (c) is not reasonably accommodated, the complainant will seemingly have some prospect of success at a hearing. Nevertheless, it should be comforting to those who have implemented a reasonable mask and accommodation policy that, so far, every published decision concerning a mask complaint has resulted in the complaint being dismissed.
2. To Survive an Application to Dismiss, a Complainant must connect the “Adverse Impact” of the Mask Policy to their Protected Characteristic
For a complaint to succeed at the Tribunal, a complainant must, amongst other things, prove that enforcement of a mask requirement caused them to suffer an “adverse impact” that was related to a “protected characteristic” under the Code.
What does this mean in the context of mask complaints? Well, for starters, when considering “adverse impacts,” the Tribunal appears to accept that denial of entry to a store, ejection from a store, or termination of a working relationship for failure to comply with a mask requirement constitutes an “adverse impact” to an individual refusing to wear a mask. The Tribunal has made such a finding in each of the decisions published to date. However, linking this adverse impact to a “protected characteristic”, such as a disability or religious belief, has proven more difficult for complainants.
A medical disability is the protected characteristic most often asserted in mask policy complaints. To prove a medical disability at the Tribunal, a complainant must provide convincing medical evidence. For example, in Rael v. Cartwright Jewelers and another, the complainant’s bare assertions of “breathing problems” were deemed insufficient to establish a disability in connection with a mask complaint.
Proof is also required when asserting protections under religious grounds. In the sole mask-related complaint asserting religious belief as a “protected characteristic,” The Worker v. The District Managers, a worker alleged that having to wear a mask “arbitrarily dishonours god” because “we are all made in [god’s] image”. In dismissing the complaint, the Tribunal determined that the worker had not provided any evidence that the wearing of masks was subjectively or objectively prohibited by any religion or that refusing to wear a mask enhanced his “subjective connection” to the divine.
Additionally, the relationship between the disability in question and the complainant’s inability to wear a mask must be established on the evidence. For example, in Karleigh-Laurel Ratchford v. Creatures Pet Store, the complainant provided some evidence that she had asthma and the Tribunal acknowledged that there was, therefore, evidence of a protected characteristic (namely, a physical disability). However, the Tribunal nevertheless dismissed the complaint, as the complainant did not explain how her asthma prevented her from wearing a mask.
3. Mask Requirements are a Rational, Necessary, Good Faith Response to COVID-19
If a complainant establishes that they have a protected characteristic under the code and that they have suffered an adverse impact related to same, the respondent business will need to show that:
- the mask policy in question is rationally connected to its function or purpose;
- the mask policy was adopted in good faith, in the belief that it was necessary to the fulfillment of its purpose or goal; and
- the respondent cannot accommodate those adversely affected by the mask policy without incurring undue hardship.
In every decision published to date, the Tribunal has concluded that, in the context of the COVID-19 pandemic, the mask policies in question have met standards (a) and (b). This was even found in the circumstances where the policy pre-dated the provincial government’s mask mandate. This suggests that, if employers and service providers can evidence that their mask policy was implemented to protect employees and the public from the spread of COVID-19, the policy will likely meet requirements (a) and (b) above.
4. Businesses Need to Accommodate Those That Refuse to Wear Masks
Part (c) of the test set out above introduces the “duty to accommodate”. This duty is frequently cited by complainants and is something that is far too often misunderstood.
The Tribunal’s decisions in Coelho and Ratchford indicate that options for online shopping, curbside pickup, and wearing face shields may fulfill the duty of reasonable accommodation. In particular:
- In Coelho, in place of in‐store shopping the respondent retailer offered shopping online with free shipping, shopping online with pickup at the store, and assistance from store employees outside the store. The Tribunal determined that it was reasonably certain that these options would be deemed sufficient to discharge the duty to accommodate if the complaint had proceeded to a full hearing.
- In Ratchford, the respondent pet store offered to serve the complainant at their door while an employee retrieved items. The store also offered the complainant the option of purchasing a $5 face shield to be worn in lieu of a mask. The complaint was dismissed on the basis that the complainant had been reasonably accommodated, with particular focus on the availability of a face shield. It is important to note that this decision does not indicate that offering face shields is required for reasonable accommodation, particularly in the time of the extremely transmissible Omicron variant. Rather, Ratchford suggests that offering face shields is one of several ways businesses might meet the standard of reasonable accommodation.
5. An Exemption Note is not a Blank Cheque to do whatever you want
Lastly, the Tribunal has made it expressly clear that an “exemption” note (either from a doctor or otherwise) does not permit exemption-holders to simply do whatever they want.
First, the Tribunal has indicated that an exemption note does not by the fact of its existence establish that the holder has a disability that prevents them from wearing a mask. While an exemption note may provide evidence of such a condition, an exemption-holder still needs to prove the condition’s existence on the balance of probabilities to succeed before the Tribunal.
Second, even where an exemption note sets out a provable condition that makes the holder unable to wear a mask, this only triggers a duty to provide reasonable accommodation to the point of undue hardship. This is different from an individual’s ideal accommodation. As noted in Coelho:
 If a complainant establishes that they experienced a disability-related adverse impact – such as not being able to wear a mask and being barred from entering a premises as a result – this does not then entitle the complainant to simply do what they please. Rather, it requires the respondent to reasonably accommodate the complainant to mitigate that barrier.
Lastly, the Tribunal has made clear that accommodation is a two-way street. In particular, those looking for accommodations must participate in the accommodation process by (a) communicating their need for accommodations, and (b) accepting solutions that are reasonable, without insisting on perfection.
To summarize, in the published decisions to date regarding mask policies, the Tribunal has held that:
- mask policies are reasonable in the context of the COVID-19 pandemic;
- the complainants’ evidence supporting a connection between a protected ground and the adverse effect of wearing a mask has been insufficient;
- a valid exemption note entitles a complainant to reasonable accommodation, not their ideal accommodation; and
- curb-side pick up, online shopping, or face shields would likely constitute reasonable accommodation by service providers.
Nevertheless, the Tribunal’s decisions also suggest that, in the right circumstances, a poorly implemented mask policy – or a mask policy that has been established for improper reasons or fails to consider reasonable accommodations for individuals with protected characteristic under the Code – could constitute discrimination. It is therefore prudent to obtain independent legal advice concerning any COVID-19 related policies that you are currently implementing or considering.
 See, for example, Coelho v. Lululemon Athletica Canada Inc., 2021 BCHRT 156 [Coelho”] at para 20
 2021 BCHRT 106
 2021 BCHRT 41
 Ibid, para 10
 2021 BCHRT 157