Maskless exclusions a potential human rights issue
Like masking bylaws throughout the province, the City of Hamilton’s bylaw requiring people to wear face coverings over their nose and mouth in public places has an exception.
It says: “This requirement shall not apply to members of the public that state that they fall within an exemption of this Bylaw or appear to fall within one of the exemptions.” There are too many exemptions to list here but one of them is that the person, “has an underlying medical condition which inhibits their ability to wear a face covering.”
The result is that business owners are not required to exclude people who claim to have a medical condition that keeps them from wearing a face covering. But what if the business owner chooses to exclude that person? I would imagine that staff would get lots of comments and complaints if maskwearing customers saw somebody maskless wandering around the store, especially as our number of infections go up.
Business owners might decide it is less grief to exclude anyone who claims they are unable to wear a mask.
That person would have a right to bring a complaint pursuant to the Ontario Human Rights Code against the business claiming discrimination on the basis of a disability. But there is a catch. When that complaint is eventually heard by a tribunal officer, the complainant will have to prove that they were, in fact, a person unable to wear a mask for medical reasons. Just saying it does not make it so.
Many medical experts appear skeptical of there being any real medical reason for most people to wear a mask, some likening it to wearing a scarf in winter. Some say there are real exceptions like those with advanced lung diseases who are receiving supplemental oxygen.
The point is that any individual claiming that their rights have been violated have to prove that they actually had a condition that at least one doctor believes meant they should not wear a mask. Assuming that the complainant has such evidence, there is still another hurdle to get over. The duty to accommodate under the Ontario Human Rights Code has a caveat. One has to accommodate unless it would be an “undue hardship.”
The business owner might argue that the complainant could have taken advantage of their curbside pickup service or delivery service and that that is an appropriate accommodation. They could also argue that the anxiety caused to other patrons and the upset in the store constituted an undue hardship. Whether these arguments would succeed has yet to be seen.
All of the above applies to an employment situation. Many employers that are not hosts to the public now have mandatory masking policies when anyone is away from their work station or desk. If an employee claims that they have a medical exemption the employer does have the right to ask for a note from their doctor. If that note is received the employer will need to accept it.
Extra steps may have to be taken to ensure that employee can always be at least six feet away from everyone else. If that is not possible the employer may have to consider laying that person off until conditions are such that they can be safely returned to a mask free workplace. Again, that employee could file a complaint with the Ontario Human Rights Tribunal claiming discrimination as a result of them being sent home without pay.
I am unaware of any such complaint being brought so far but, if it happens, it will create a very tough dilemma for some adjudicator. Does the employer have the right to put the health and safety of it’s other employees above the employee’s right to work? Until there is such a complaint made and a decision rendered, we will all have to wait for the answer.