As of September 2021, our country is continuing to slowly reopen. As part of that slow reopening, we have seen a number of policies enacted that have sparked controversy and have been met with mixed reactions. Among those policies are mandatory mask policies. These policies often require that all people, employees and customers alike, wear face masks when inside the workplace.
At issue is whether or not these mandatory mask policies amount to a violation of human rights. For instance, many provinces including Ontario make it illegal to discriminate against a person on the basis of disability. If somebody were unable to wear a face mask on account of a disability, refusing to service that person due to their lack of a face mask would likely be discrimination contrary to the Ontario Human Rights Code.
This issue recently arose in an Albertan human rights complaint. The Human Rights Tribunal of Alberta held that a mandatory mask policy was not discriminatory and therefore did not violate the complainant’s human rights.
Factual Background: Szeles v Costco Wholesale Canada Ltd.
Mr. Szeles was a customer of Costco. He claimed to have a disability which prevented him from wearing a face mask as required by the company’s mandatory mask policy. An employee at Costco suggested he wear a face shield as opposed to the face mask, which Mr. Szeles refused on the grounds that the use of a face shield was stigmatizing and singled him out as a person with a disability. An altercation ensued and Mr. Szeles was escorted by police out of the store. He subsequently complained that Costco had discriminated against him in the area of goods, services and accommodation on the ground of physical disability.
In response, Costco argued that the mandatory mask policy was implemented to protect their employees and customers from COVID-19. According to Costco, they provided a number of reasonable accommodations for those who could not or would not wear face masks – the option of a face shield, or various online, home delivery or pick up options.
The Tribunal’s Decision
Ultimately, the Tribunal dismissed Mr. Szeles’ complaint. There was no doubt that Costco’s policy did have an adverse impact on persons who, by reason of disability, could not wear face masks. However, the Tribunal noted that there are limitations to the right to be free from discrimination, including where:
- a) the limitation or rule is instituted for valid reasons;
- b) it is instituted in the good faith belief that it is necessary; and
- c) it is impossible to accommodate persons who may be adversely affected, without incurring undue hardship.
There is no doubt that Costco’s mandatory mask policy was instituted for valid reasons. It was consistent with mandatory public health regulations both at the municipal and provincial levels. The accommodations offered, namely, the face shield was held to be reasonable. Various local and international health organizations have suggested that face shields are an alternative to face masks, albeit not as effective. The fact the face shield was not as effective as the face mask did not undermine the reasonableness of the mandatory mask policy. The same could be said for the other accommodations offered – online shopping, pick-up options, etc. In light of this, Mr. Szeles’ complaint was dismissed. The mandatory mask policy was not discriminatory on the grounds of disability.
A Contextual Analysis – Potential for Change
Interestingly, the Tribunal noted at the end of their decision that they reached their decision in light of the status of the pandemic at the time Costco implemented their policy. Public health guidance, they said, along with evidence about the pandemic will inevitably change over time. With that change, it is possible that a different decision could have been made. As such, their decision to dismiss the complaint here does not necessarily mean that no human rights complaint regarding mandatory mask policies will succeed. It may vary on a case-by-case basis.
However, for now, it seems employers can rest easy in implementing mask policies. Until the public health guidelines surrounding COVID-19 and preventative measures change, they likely will not get in trouble for having such policies. As the status of COVID-19 changes, so too should the employer’s policies. It is important to be flexible and continue to adapt to recent developments.