The wide-spread wearing of facial masks has become perhaps the most visible symbol of the ongoing COVID-19 pandemic. Whereas mask usage was once merely recommended, all levels of government have gradually introduced new laws requiring mandatory mask wearing in a variety of settings. From a quick trip to the grocery store to attending at work in-person, masks are now a regular part of daily life.
As may have been expected, there has been push-back against mandatory mask laws. The initial legal decisions concerning these disputes, however, provide helpful guidance with respect to what may amount to valid (and invalid) objections to mask wearing.
Invalid – objections based on political opinion
Sharma v. Toronto (City) was a case heard in late 2020 before the Human Rights Tribunal of Ontario (“HRTO”). It involved an individual turned away from various businesses in the Toronto area for refusing to wear a mask. In response, Sharma brought a human rights challenge to the City of Toronto’s mask by-law.
Discrimination on the basis of creed was the first argument advanced by Sharma. In particular, he contended:
My creed disagrees with covering my face for unsubstantiated claims…City of Toronto only loosely references anecdotes of “masks being effective” — this is not evidence. My creed requires that I do not blindly accept what government or agencies claim, mandate or enact into laws (or by-laws). Instead, it is my civic duty to be critical of government and their decisions.
The HRTO had little time for Sharma’s creed-based claim of discrimination. While it was conceded that (in theory) certain political systems or beliefs may engage creed-based protections, differences of “mere political opinion” are not sufficient.
To that end, Vice-Chair Connell concluded:
In essence, the applicant disagrees with the City’s policy choice to enact the By-Law because he does not think that the efficacy of masks has been sufficiently proven. This does not engage creed within the meaning of the Code. The applicant’s recourse is to engage with the City’s elected officials about his concerns, not to file an Application alleging discrimination because of creed.
Valid – objections based on medical necessity
Sharma also challenged the City of Toronto’s mask by-law on the basis of disability discrimination. In support of his position, Sharma provided evidence that he was subject to two medical conditions that the HRTO accepted fit the definition of “disability”. It was further contended that these disabilities interfered with his ability to wear a mask.
Vice-Chair Connell agreed that Sharma had a potential case with respect to disability-based discrimination. However, she also noted that he had failed to sue the right party. To the extent that Sharma may not have been properly accommodated by businesses with respect to mask-wearing, he was required to litigate directly against those entities and put their conduct (and his own) under examination. Sharma’s case against the City of Toronto, and its mask by-law, was therefore dismissed.
Invalid – objections based on unsupported religious grounds
In British Columbia, the very recent case of The Worker v. The District Managers considered how religious belief may impact mask wearing requirements. It involved a worker who was barred from entering the workplace after he refused to wear a mask on claimed religious grounds. When the worker persisted in this course of action, his contract was terminated.
Before the British Columbia Human Rights Tribunal (“BCHRT”), the worker explained that being forced to wear a mask infringed on his “God given ability to breath[e]”. He further disputed the effectiveness of mask-usage as a public health measure. On this basis, the Worker concluded that being forced to wear a mask was “arbitrary” and contrary to his religious convictions.
The BCHRT rejected the worker’s case. In a short summary decision, Tribunal Member Adamson noted:
These facts, if proven, could not establish that the Worker’s objection to wearing a mask is “experientially religious in nature”. He has not pointed to any facts that could support a finding that wearing a mask is objectively or subjectively prohibited by any particular religion, or that not wearing a mask “engenders a personal, subjective connection to the divine or the subject or object of [his] spiritual faith”: Amselem at para. 43. Rather, his objection to wearing a mask is his opinion that doing so is “arbitrary” because it does not stop the transmission of COVID‐19.
As the above-noted cases demonstrate, personal opinion, political disagreement, and disconnected religious beliefs are insufficient grounds to avoid having to wear a mask. Employers can rest assured that frivolous objections to their enforcement of mandatory mask rules are unlikely to survive scrutiny by adjudicators. That said, employers must nonetheless take care not to arbitrarily dismiss workers who seek a mask exemption. All such claims must be given due consideration and assessed as to whether reasonable accommodations are truly required in the circumstances.