There are public health requirements in Ontario to enforce mask-wearing in many public places and workplaces to reduce the risk of COVID-19 transmission. This has sometimes resulted in situations where an individual cannot or does not want to comply. In these cases, employers must determine whether they are required to accommodate the individual and to what extent. A recent decision by the Human Rights Tribunal of Ontario, Sharma v. Toronto (City), confirms that it is only necessary to accommodate refusals that are based on a protected ground under the Ontario Human Rights Code (the “Code”) and not refusals based on personal objections.
The Applicant filed a human rights application against the City of Toronto for enacting a By-Law that required publicly accessible businesses and other establishments to only permit access to members of the public wearing a mask or face covering (referred together in this article as “masks”). The Applicant claimed that the City discriminated against him because several businesses denied him services as a result of the By-Law. The premise for his claim was that he could not wear a mask based on two protected grounds under the Code, creed and disability:
- his creed required that he not “blindly accept” government laws such as the By-Law because it was his “civic duty to be critical of government and their decisions”, and in his opinion, the By-Law was not supported by evidence; and
- wearing a mask would impede his breathing, and it was his position that the burden should not be on individuals with a disability to explain their need for accommodation to businesses or establishments.
In a summary hearing decision, the Tribunal dismissed the application on the basis that it had no reasonable prospect of success even if all the allegations were accepted as true. With respect to creed, the Tribunal observed that it has generally understood this to mean an individual’s “sincerely held religious beliefs or practices”. However, this did not include “mere political opinion” that does not form a “recognisable cohesive belief system or structure”. As the Applicant’s objection was based on his disagreement with the quality of supporting evidence for the By-Law, rather than on a creed protected by the Code, his application failed on this ground.
With respect to disability, the Tribunal found that the medical conditions described by the Applicant would fall into the definition of disability as it is broadly understood under the Code, but that ultimately his application failed on this ground because it should have instead been brought against the businesses that allegedly denied him services. The Tribunal also clarified although an individual is generally not required to disclose a specific medical condition unless this is required to determine their accommodation needs, the accommodation process is a “shared responsibility” that requires an individual to disclose they have disability-related needs.
In this case, the By-Law provided an exemption for individuals with either a medical condition that inhibited mask-wearing or another Code-protected ground for accommodation, and specifically prohibited businesses from requiring members of the public to provide proof of such exemptions. In that context, the Tribunal held that an individual would only be required to identify that they fall under an exemption to trigger the duty to accommodate. However, the Applicant’s claims against those businesses could not be made against the City, as the By-Law itself was consistent with the Code, and the City was not liable for the conduct of others.
Takeaways for Employers
This decision is a reminder that employers must assess refusals to comply with mask-wearing requirements on a case-by-case basis to determine if a Code-protected ground such as creed or disability is present. Where an employee or patron identifies a Code-protected ground that inhibits them from wearing a mask, the duty to accommodate is engaged and the employer must reasonably accommodate the individual to the point of undue hardship (which includes an assessment of the impact on health and safety and other factors). Subject to any restrictions on requesting medical information (like those in the By-Law for Toronto businesses or other similar laws), employers are generally entitled to request sufficient information that will enable them to determine an individual’s Code-related needs and what accommodation is appropriate in the circumstances.
Any accommodation should be also consistent with public health requirements for workplace safety, as well as an employer’s duty under occupational health and safety legislation to take every precaution reasonable in the circumstances for the protection of a worker. Given the risks of COVID-19 transmission that have been recognized by public health authorities, employers will need to consider how working conditions can be arranged so that employees have adequate protection when interacting with unmasked individuals.
This decision also affirms that an individual must disclose more than a mere opinion to be entitled to accommodation. The duty to accommodate is not triggered by a personal objection arising from a political, philosophical, or lifestyle disagreement that is not connected to a recognisable cohesive belief system which can be characterized as a creed under the Code.Employers should ensure they are in compliance with all applicable public health rules and have procedures to deal with situations where an individual is not complying with a mask-wearing requirement. If you need assistance reviewing your public health and accommodation policies, please contact the author or your usual Fasken lawyer.