'It's a high bar on an employer to show it has taken all reasonable steps to accommodate an employee's disability to the point of undue hardship'
“It's a high bar on an employer to show that it has taken all reasonable and practicable steps to accommodate an employee's disability to the point of an undue hardship. Factors that will be considered in determining whether an employer has met that threshold would include whether or not accommodation would substantially interfere with the rights of other employees.”
So says Scott Dallen, an employment lawyer at Ascent Employment Law in Vancouver, after the British Columbia Human Rights Tribunal granted an employer’s application to dismiss a worker’s discrimination claim based on the worker’s inability to wear a face covering at work during the pandemic.
The 17-year-old worker was hired as a part-time service clerk in July 2019 by Buy-Low Foods, a grocery store company operating in Western Canada. His job duties involved checking out groceries for customers and taking payment.
The BC store where the worker was employed was small with a high daily volume of customers, as there were only a few grocery stores in the area. The store consisted of a sales floor open to customers, an enclosed refrigerated room for meat, storage areas, offices, and a garbage recycling area. All positions in the store were public-facing.
On Aug. 24, 2020, Buy-Low implemented a mask policy in response to the COVID-19 pandemic. The policy required all store employees to wear a face mask at entrances, on the sales floor, and whenever they were working in an area where physical distancing wasn’t possible.
Medical evidence required for accommodation
Employees were given a two-week grace period to comply with the policy and anyone who couldn’t wear a mask due to health concerns were asked to provide medical evidence so the company could consider accommodation options.
Masks weren’t mandatory in BC at that point, but Buy-Low’s policy was based on information from Canada’s public health agencies. The company made it a priority to protect customers and employees from infection.
The worker informed Buy-Low that he couldn’t wear a mask at work. He provided a note from his doctor stating he would “struggle to wear a mask” because he had been diagnosed with claustrophobia. Buy-Low acknowledged the note and ordered a face shield for the worker to wear in the store.
However, when the face shield arrived, the worker refused to wear it and the store manager stopped scheduling him to work in the store. The worker then provided a second doctor’s note that was essentially the same as the first, except that it added that the worker would also struggle to wear a face shield.
The company considered possible accommodation for the worker, including cleaning the meat room where there would be limited interaction with other employees or the public. However, another employee performed that task as part of their duties and it would only take about one hour to do. This wouldn’t be enough to meet the minimum hours required for a shift under the BC Employment Standards Act.
No accommodation suggestions from worker
Later that month, Buy-Low’s HR director called the worker’s mother to tell her that they couldn’t find work that would allow the worker to stay physically distanced from other employees and customers. The HR director asked if they had considered other work he could do at the store while maintaining physical distancing, but the mother was unable to suggest anything.
On Nov. 19, the BC government instituted mandatory masking in all public indoor spaces. The order was lifted in July 2021 and Buy-Low suspended its mask policy and scheduled the worker to return to work.
The worker worked at the store for about one month until Aug. 20, 2021, when the provincial government reinstated the mask mandate. Buy-Low once again stopped scheduling the worker because he couldn’t wear a mask or face shield.
The worker’s mother filed a complaint on his behalf alleging discrimination in employment on the basis of disability. Buy-Low applied to dismiss the complaint as having no reasonable prospect of success because the worker had no evidence of a disability that prevented him from wearing a face mask or shield. It also argued that, if there was a disability, it took steps to accommodate the worker and couldn’t reasonably do so without undue hardship.
Applications to dismiss human rights complaints are brought forward frequently, but they aren’t often successful, says Dallen.
“The bar is very low for a complaint [to proceed to a hearing] - essentially, you don't have to have any proof or evidence, but your claims have to hold up on their own,” he says. “If we assume all of the things in the claim are true, they have to have some reasonable prospect of success.”
Test for discrimination
The tribunal noted that the worker would have to prove three elements at a hearing – he had a disability protected from discrimination by the BC Human Rights Code, he was adversely impacted in his employment, and his disability was a factor in the adverse impact.
The tribunal noted that the definition of claustrophobia was a fear of being in small, narrow, or closed spaces, but wearing a face covering “is not synonymous with being in a small space.” The doctor’s notes were vague and didn’t explain how the worker’s claustrophobia would impact his ability to wear a mask or shield, the tribunal said.
The tribunal seemed to reject a trend of general vagueness in doctor's notes, where someone will go to a doctor and get a note that just says they can’t perform certain work for medical reasons, says Dallen.
“I think this is a bit of a shot across the bow of employees to say that we've tread this fine line between privacy in a medical context and what an employer requires to be able to change or accommodate someone’s duties, and this didn't meet that threshold,” he says. “Something more is required than just saying it will be challenging for this employee to meet that condition, and the tribunal seemed to say that the note has to also set out how the employee's medical condition or disability is incompatible with the employer’s directions.”
The tribunal determined that the worker had insufficient evidence to take his claim that he had a disability preventing him from wearing a mask “out of the realm of conjecture.” As a result, there was no reasonable prospect that he could establish in a hearing that he was prevented from wearing a mask or shield because of a disability and it was likely that Buy-Low could establish a defence, said the tribunal.
Duty to accommodate disability
The tribunal also found that, even if the worker could prove a disability, Buy-Low would be able to prove that it discharged its duty to accommodate. The company adopted the mask policy for good-faith, safety-related reasons that were reasonably necessary to ensure the safety of staff and customers, the tribunal said. In addition, the company tried to accommodate the worker with a face shield, but the worker rejected it. It also considered other tasks, but they wouldn’t be enough to support the worker and the worker’s mother had no suggestions, said the tribunal.
“[Buy-Low] did everything right here - they considered the disability, they took [the worker] at his word that his disability would prevent him from wearing a face mask, they tried to accommodate it in several ways, and they documented the accommodation process,” says Dallen.
“And in the end, they determined that they couldn't do anything else for him, and it's that sort of documentation process that is particularly important for employers to keep in mind - it's one thing to consider these things and to try to accommodate an employee to the best of your abilities, but it's another important step to make sure that you're documenting that process as well.”
The worker’s complaint was dismissed as having no reasonable prospect of success at a hearing.
Dallen sees this decision as a continuation of a series of practically minded decisions coming out of the pandemic around the tension between individual and collective rights in an employment context, when collective safety is at risk.
“We tend to be an individual rights-based society, particularly in our legal system,” he says. “But through the pandemic, we've seen both the civil courts and tribunals showing a willingness to prioritize collective rights, which is relatively new in the law.
“The right of the majority of employees and the public attending the grocery store to be safe outweighs the right of the individual to free choice or even the right of an employee to have their disability accommodated - that is a real change, I think, in our human rights regime.”
