How should anti-maskers be treated?

An employee's opinion isn't a ground for discrimination when it comes to mask requirements

How should anti-maskers be treated?

No matter what the issue, there are always contrarians. But things can get a little dicey when the contrarians are a potential danger not just to themselves, but to others as well.

This is the dilemma faced by employers when they deal with people who refuse to follow policies requiring masks indoors during the COVID-19 pandemic. If it’s a customer, a business can ask them to leave or refuse to let them in and they may be accused of discrimination. If the person is an employee, it can get even more complicated.

If the reason for the refusal is due to a ground protected under human rights legislation, such as a health condition that qualifies as a disability, the employer is legally bound to investigate if there’s a way to accommodate the worker. This could involve putting the employee somewhere where they can work by themselves and are safely distanced from other employees, if possible, or even putting them on paid leave. Of course, like any accommodation, the threshold of undue hardship is a limit.

If an employee does claim a human-rights-related reason for not wearing a mask, they have to be ready to prove it. In some jurisdictions, businesses don’t have to ask customers for proof of an exemption from mask rules, but the bar is higher for employees, who are spending several hours in the workplace.

As with any case of employee disability, an employee doesn’t have to provide information on their specific diagnosis, but they must be able to confirm that they have a medical issue that prevents them from wearing a mask. This may entitle the employer to request a medical note.

Opinion not religious belief

There’s also the issue of religion or creed. These are protected grounds under human rights legislation and some employees may claim this as a reason for not wearing a mask. The B.C. Human Rights Tribunal recently dealt with a worker’s claim of discrimination when he wasn’t allowed to work because he refused to follow a government order to wear face coverings indoors.

The worker claimed his “religious creed” prevented him from wearing a mask, explaining that “We are all made in the image of God, a big part of our image that we all identify with is our face. To cover up our face arbitrarily dishonours God.” He added that he didn’t believed that wearing masks was effective against COVID-19.

The tribunal dismissed his complaint, finding that his objection to wearing a mask was based on his opinion about virus transmission, not his religious beliefs. It also found that the worker didn’t provide any evidence that any particular religion prohibited the wearing of a mask: see The Worker v. The District Managers, 2021 BCHRT 41.

The Ontario Human Rights Tribunal reached a similar conclusion, although in a case involving a member of the public, not an employee. The customer challenged a Toronto bylaw requiring businesses to ensure people wear masks in their businesses on the basis of creed — “My creed disagrees with covering my face for unsubstantiated claims” that masks prevent or stop the spread of the coronavirus — and disability, claiming that wearing a mask impeded their breathing.

Although the tribunal noted that the disability claim could have held up since businesses weren’t required to ask for proof of disability, it found that “mere political opinion does not engage creed.”

The mask-wearing debate has persisted throughout the pandemic, but things get really complicated when it comes to the workplace. If the issue involved a protected ground of discrimination then, like any situation needing potential accommodation, both sides have an obligation to work on a solution — contrarian or not.

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