Since the province of Ontario entered the first wave of the COVID-19 pandemic in March 2020, governments have grappled with adjusting to the colloquially-dubbed “new normal” by enacting new laws and regulations to reduce the transmission of the novel coronavirus, and, as of more recently, its variants.
At the outset of the pandemic, for the first time in recent history, and in conjunction with federal and provincial public health guidelines, various municipalities across Ontario promptly enacted “mandatory masking” by-laws requiring individuals to wear masks when entering various establishments in an effort to reduce transmission of the virus.
The Ontario Human Rights Commission’s Position on Mandatory Masking
Across Ontario, employers obliged to comply with these “mandatory masking rules” increasingly received internal complaints from employees (who were now required to wear face masks at work) alleging that the rules contravened the Human Rights Code (the “Code”), and, often, on the basis of the Code-protected ground of “disability”.
To assist employers and others with these concerns, early in the pandemic, the Ontario Human Rights Commission published its position on “mandatory masking” stating:
The Ontario Human Rights Commission’s policy position is that any requirements related to health and safety and COVID-19, such as wearing a mask, using other protective equipment or following a procedure to perform work safely, or to protect people receiving services or living in housing, do not generally cause concern under the Code.
At the same time, employers, housing providers, stores, schools, municipalities and other organizations should recognize that health and safety requirements such as masks may have a negative impact on vulnerable populations identified by a ground under the Code who may not have access to such equipment. Other people may not be able to use the equipment or follow a procedure because of their disability or for another Code-related reason.
People with certain disabilities may have difficulty wearing a mask if, for example, they have severe allergies, experience asthma attacks or have other respiratory issues. Masks are a barrier to people with hearing disabilities who rely on lip reading or facial expressions to communicate. Masks may not be suitable for children and adults with certain physical, intellectual or cognitive disabilities such as autism.
Employers, housing providers, stores, schools, municipalities and other organizations have a duty under the Code to accommodate these types of individual needs related to legitimate COVID-19 requirements, unless it would amount to undue hardship based on cost or health and safety. For example, it may be necessary to provide free masks or other means so that people with disabilities can safely perform work, receive services or live in congregate housing. For example, offering curbside pickup would generally allow a person to receive a retail service even if, because of their disability, they are unable to wear the required mask to enter a store.
In effect, the Ontario Human Rights Commission’s position balanced the rights and obligations of employers and employees both recognizing the legitimacy of the mandatory masking rule in the workplace (and beyond) while setting out various exceptions for individual employees who could not wear face masks for various Code-protected reasons.
The “Mandatory Masking” Trilogy
In the months that followed, several individuals filed applications at the Ontario Human Rights Tribunal (the “Tribunal”) challenging the various mandatory masking rules by alleging that such rules were discriminatory on the basis of “disability”, and since then, as below, the Tribunal has had the opportunity to address three of those applications at preliminary hearings.
Sharma v. Toronto (City), 2020 HRTO 949
Rishi Sharma filed a human rights application against the City of Toronto alleging By-Law 541-2020 imposing mandatory masking at Toronto-area establishments was discriminatory contrary to the Code on the basis of “disability” (Mr. Sharma claimed his “bodily functions” were impaired as a result of wearing a mask) since it allowed a number of establishments in Toronto to deny him services when he refused to enter those establishments without wearing a mask.
The Tribunal held that the City of Toronto was not directly responsible for the alleged actions of the establishments that refused to provide Mr. Sharma with services, and as such, his application was summarily dismissed.
CL as represented by his Litigation Guardian KL v. Toronto District School Board, 2021 HRTO 159
KL, in his capacity as litigation guardian to CL, a school-aged child, filed an application against the Toronto District School Board alleging that its mandatory masking rule imposed by the Board discriminated against CL on the basis of “disability”, and, more broadly, against various politicians and government bodies taking the position that the public health mandate requiring children to wear masks at school as a result of the COVID-19 pandemic was also discriminatory on the basis of disability.
Although the Tribunal dismissed the application against the various politicians and government bodies at the preliminary hearing stating that it did not have jurisdiction over such “general allegations of unfairness”, the Tribunal allowed the application against the Toronto District School Board to proceed to a hearing on the merits stating:
[…] However, the substance of KL’s concerns that fall within the Tribunal’s jurisdiction relate to the application of the masks in school requirement to his child CL. In this regard, KL effectively alleges that CL has a disability that requires an exemption from the requirement that he wear a mask at school. This falls within the Tribunal’s jurisdiction. Therefore, CL as represented by his Litigation Guardian KL’s Application against the Toronto District School Board alleging discrimination in services because of disability will continue in the Tribunal’s process.
As such, the Tribunal will have the opportunity to determine whether the mandatory masking rule adopted by the Toronto District School Board discriminated against CL on the basis of his/her disability at a hearing on the merits.
Civiero v. Habitat for Humanity Restore, 2021 HRTO 257
Ida Civiero filed an application against Habitat for Humanity Restore alleging she was discriminated against on the basis of disability when she was asked to leave its premises for failing to wear a mask.
In applying Sharma and CL, the Tribunal held that Ms. Civiero’s application did not set out whether Ms. Civiero refused to wear a mask because she suffered from a disability, or whether her refusal was based on personal preference, and as such, the application was dismissed.
NOTE: Since this article was originally written, and in light of the applicant providing additional details about her disability, the decision in Civiero v. Habitat for Humanity Restore, 2021 HRTO 257 has been reconsidered by the Tribunal, and the Application is proceeding in the ordinary course. We apologize for any inconvenience.
The Impact of the “Trilogy” on the Future of Mandatory Masking Rules
The “Mandatory Masking Trilogy” provides both employers and employees with some clarity on the parameters of the mandatory masking rule which is expected to be in effect for the near future, and certainly, during the next stage of Ontario’s re-opening plan.
These decisions suggest:
- Employers should always comply with the Code, as well as applicable legislation, regulations and public health guidelines requiring employees to wear masks in the workplace.
- Employees ought to wear face masks, subject to any disability- or other Code ground-related accommodation requests.
- Employees who simply disagree with mandatory masking rules, allege that it is their personal preference to enter establishments unmasked, and/or make broad allegations about government-issued laws, regulations and public health guidelines on mandatory masking will not be successful in convincing the Tribunal that their employer violated the Code.
Employers may use preliminary hearings as a helpful “tool” to dismiss meritless applications challenging mandatory masking rules in the early stages of litigation.
ABOUT THE AUTHOR
Janeta Zurakowski is lawyer at Filion Wakely Thorup Angeletti LLP where she provides strategic advice and representation to employers in all areas of labour and employment law across a full spectrum of industries.
Any article or other information or content expressed or made available in this Section is that of the respective author(s) and not of the OBA