No Mask, No Service – Human Rights Concerns in Ontario

With the COVID-19 pandemic ongoing in Ontario, laws making the wearing of masks mandatory to enter stores and businesses have been triggering Human Rights concerns in the City of Toronto. Employers are therefore responsible for enforcing the mask mandate on customers entering their stores and locations, in addition to their employees. While it may seem straightforward, there are other intersecting obligations and issues employers need to be aware of before turning away customers from their business.

Exemptions to the Mandatory Mask Law

The bylaw making the wearing of masks inside businesses mandatory in Toronto, Bill 511 (“Bill”), contains a number of circumstances in which an individual is exempt from the requirements to wear a mask:

• Children under the age of two
• Persons with an underlying medical condition which inhibits their ability to wear a mask or face covering
• Persons who are unable to place or remove a mask or face covering without assistance
• Employees and agents of the person responsible for the establishment within an area designated for them and not for public access, or within a physical barrier, and
• Persons who are reasonably accommodated by not wearing a mask or face covering in accordance with the Ontario Human Rights Code.  

Additionally, section 2(d) of the Bill states that proof of any exemptions is not required to be provided to the employer or establishment.

Human Rights Concerns in Ontario

Given the nature of the exemptions related to underlying medical conditions and the Ontario Human Rights Code-related accommodations, employers should be aware that refusing service to those not wearing a mask could result in consequences with the Human Rights Tribunal of Ontario (“HRTO”) on the basis of disability.

If an individual is refusing to wear a mask when attempting to enter a business, the employer should verify whether any exemptions apply to the situation before refusing service. Additionally, the employer could become liable for human rights damages should they demand evidence of any disability-related exemptions as a condition to permit entry.

As an application at the HRTO can attract significant damages, employers should ensure they do not accidentally open themselves up to liability when enforcing the mandatory mask requirements.

Duty to Keep Staff Safe

Employers also have a duty to keep the workplace safe for employees. Some employees may feel that individuals being allowed into the place of business without a mask due to an exemption puts themselves at risk, and they may wish to avoid that customer or refuse to attend the workplace.

If an employee feels unsafe or is refusing to attend unsafe work, the employer should reassure the employee of measures taken to protect the workplace and cooperate with any unsafe work investigations that may be initiated under the Occupational Health and Safety Act. It is important not to discipline an employee for feeling concerned about the safety of the workplace in the event of mask exemptions.

Considering the various competing duties employers have when it comes to enforcing Toronto’s mandatory mask legislation, adhering to human rights legislations, and the duty to keep employees safe, an employer with concerns on how best to manage all of these duties together should speak to an employment lawyer to ensure they are handling the matter correctly.

Contact Us

If you are an employer who wants to know more about your duties to customers and staff during the COVID-19 pandemic, or an employee or customer, and want to know about your rights, our team of experienced workplace lawyers at Achkar Law can help. Contact us by phone toll-free at 1 (800) 771-7882 or email us at [email protected] and we would be happy to assist.

If you are a small or medium-sized company looking for full-service support, visit our CLO program page for our strategic solutions.

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Disclaimer: This blog is not intended to serve as, or should be construed as legal advice, and is only to provide general information. It is in no way particular to your case and should not be relied on in any way. No portion or use of this blog will establish a lawyer-client relationship with the author or any related party. Should you require legal advice for your particular situation, fill out the contact form, call 1-(800)771-7882, or email [email protected].