Retailer’s mandatory mask mandate – no discrimination based on disability or religious belief
A recent decision of the Human Rights Tribunal of Alberta (“Tribunal”) dismissing a customer’s allegations of discrimination based on physical disability and religious belief against a Natural Food Store’s mandatory mask policy confirms our recent thoughts that triers of fact will take a measured and principled approach to enforcing mandatory mask policies in the retail sector. Pelletier v 1226309 Alberta Ltd. o/a Community Natural Foods, 2021 AHRC 192 adds to the body of developing case law upholding health and safety policies aimed at reducing the spread of COVID-19.
Key takeaways include:
- Robust medical documentation is needed to support an exception to a mask-wearing policy on the basis of disability;
- Religious-based challenges to a mask or vaccination policy will be construed narrowly for human rights purposes – personal beliefs of a complainant about COVID-19 and preventative measures, even if couched in religious terms, will not amount to discrimination on the basis of religion.
- To support not adhering to a mandatory mask policy, complainants will have to provide a sufficient objective basis to establish that the belief is a tenet of a religious faith and a critical part of expressing that faith.
- The duty to accommodate does not require service providers or employers to remedy all inconvenience or hardship – the purpose of the restriction and surrounding circumstances are important.
Background
On January 31, 2021, Mr. Pelletier entered Community Natural Foods store but refused to wear a mask, claiming he was “medically exempt” and that the mask mandate infringed upon his religious beliefs. The grocery store denied him entry but offered various accommodations, such as online shopping, free home delivery, curbside pick up, and use of a personal shopping assistant.
He was unsatisfied with the alternatives and filed a human rights complaint claiming, amongst other things, that if he wore a mask, he would become immediately and violently ill. Supporting evidence included:
- A doctor’s note stating only that he was “medically exempt from wearing a mask due to a medical condition”;
- Wearing a face mask infringes on his religious beliefs which he supported with Bible passages and an assertion that his beliefs were sincerely held; and
- Personal statements/beliefs that “face masks are useless”.
Decision
The Tribunal dismissed the complaint finding that there was insufficient information to support a claim of discrimination.
With respect to disability, the Tribunal explained that allegations of discrimination based on disability should be supported by sufficient evidence including a formal diagnosis and the restrictions that flow from the disability and the accommodations required.
As to religious belief, the Tribunal cited a recent British Columbia decision (The Worker v The District Managers, 2021 BCHRT 41) dealing with a similar complaint, highlighting:
The Code does not protect people who refuse to wear a mask as a matter of personal preference, because they believe wearing a mask is “pointless”, or because they disagree that wearing masks helps to protect the public during the pandemic.
The Tribunal went on to confirm that to successfully establish a claim of religious discrimination there must be a sufficient objective basis to establish that a particular belief is a tenet of a religious faith (whether or not it is widely adopted by others of the faith) that is a fundamental or important part of expressing that faith.
Mr. Pelletier failed to meet these requirements.
Lastly, with respect to the accommodations offered by the retailer, the Tribunal confirmed that accommodations need not be perfect or be the complainant’s preferred accommodation. Rather, the analysis must take all of the circumstances into account and be applied with a practical, “common sense” approach. Here, the retailer was making best efforts to operate during a global pandemic, tasked with balancing competing interests of customer service versus adequate safety precautions, while trying to stay up-to-date with the evolving science and government-mandated health requirements. Very simply, even if there had been a finding of discrimination, reasonable accommodations were offered and providing an exemption to the Complainant would have resulted in undue hardship in the circumstances.
Implication for Businesses
The case acknowledges the challenges of operating a business during a pandemic and provides continued support for implementing stringent measures to protect the public from the spread of COVID-19. It confirms our inclination that the bar for establishing discrimination and deviation from mandatory policies will be high and that “personal preferences” do not justify exemptions from policies aimed at promoting health and safety.
While more decisions will inevitably follow, we encourage businesses to continue to monitor the changing landscape and seek advice from our team regarding implementation of mandatory polices, accommodations or exemptions.
This client update is provided for general information only and does not constitute legal advice. If you have any questions about the above, please contact a member of our Labour and Employment group.
Click here to subscribe to Stewart McKelvey Thought Leadership.
Archive
By Brian Tabor, QC and Colin Piercey Bill 81 and Bill 15, receiving Royal Assent in 2013 and 2014 respectively, are due to take effect this month. On June 30, 2017, amendments to the Builders’…
Read MoreNew Brunswick continues to be a thought leader in the field of regulation of recreational cannabis and provides us with a first look at what the provincial regulation of recreational cannabis might look like. New…
Read MoreRick Dunlop and Richard Jordan In Stewart v. Elk Valley Coal Corporation, 2017 SCC 30, a six-judge majority of the Supreme Court of Canada (“SCC”) confirmed a Tribunal decision which concluded that the dismissal of an…
Read MoreBy Kevin Landry New Brunswick’s Working Group on the Legalization of Cannabis released an interim report on June 20, 2017. It is a huge step forward in the legalization process and the first official look at how legalization…
Read MoreRick Dunlop and Kevin Landry As we explained in The Cannabis Act- Getting into the Weeds, the Cannabis Act introduces a regulatory regime for recreational marijuana in Canada. The regime promises to be complex. The details of legalization will be…
Read MoreOn April 1, 2017, the New Brunswick Lobbyists’ Registration Act was proclaimed into force (the “Act”), requiring active professional consultant or in-house lobbyists to register and file returns with the Office of the Integrity Commissioner of New…
Read MoreJoe Thorne and Jessica Habet How far can an insurer dig into the Plaintiff’s history to defend a claim? And how much information is an insurer entitled to have in order to do so? In English v.…
Read MoreNeil Jacobs, QC, Joe Thorne and Meaghan McCaw The Newfoundland and Labrador Court of Appeal recently confirmed that accounting/auditing firms may take on several mandates in respect of companies that may or do become insolvent in Wabush Hotel Limited…
Read MoreJoe Thorne and Brandon Gillespie An independent medical examination (“IME”) is a useful tool for insurers. An IME is an objective assessment of the claimant’s condition for the purpose of evaluating coverage and compensation. Where a…
Read MoreOn June 2, 2017 the Supreme Court of Canada released its decision in Saadati v. Moorhead, 2017 SCC 28, clarifying the evidence needed to establish mental injury. Neither expert evidence nor a diagnosed psychiatric illness…
Read More