A recent decision by the Human Rights Tribunal of Ontario (the “Tribunal”), Sharma v City of Toronto [Sharma], is the first in the province to consider an application challenging a municipal bylaw requiring masks and face coverings (collectively, “masks”) in indoor public spaces for alleged discriminatory effects on the basis of grounds protected by the Ontario Human Rights Code [Code].
The decision reminds employers that refusals to comply with masking requirements must be assessed on a case-by-case basis to determine whether the refusal engages a Code-protected ground, and clarifies what information employers may request to make such a determination.
Throughout the summer of 2020, several Ontario municipalities established bylaws on masking requirements. On June 30, 2020, the City of Toronto (the “City”) enacted Bylaw 541-2020 (the “Bylaw”), which requires businesses and other establishments that are open to the public to adopt a policy prohibiting members of the public from entering or remaining within any enclosed space unless they are wearing a mask. The Bylaw also provides that such a policy must contain certain exemptions, including for individuals with an underlying medical condition which inhibits their ability to wear a mask, and cannot require a person claiming an exemption to provide proof.
Another exemption to wearing masks under the Bylaw pertains to certain employees in an area designated for them and not public access, or behind a physical barrier. This exemption would also prohibit employers from requiring proof of certain employees. However, this exemption pertaining to certain employees was not at issue in this decision, as the exemption was claimed by a member of the public.
The Applicant, Rishi Sharma, filed a human rights application against the City. Mr. Sharma alleged that as a member of the public he had been denied service at a number of businesses due to the Bylaw, contrary to the Code, despite that he is unable to wear a mask on the protected grounds of creed and disability.
In particular, Mr. Sharma complained that the efficacy of masks was “not substantiated by scientific evidence”, and that compliance with the Bylaw would thus offend his creed, which requires that he not “blindly accept” laws. Mr. Sharma further complained that wearing a mask would impede his breathing, and that disabled persons should not “bear the brunt” of explaining or proving their disabilities to businesses.
The Tribunal held a summary hearing to address whether Mr. Sharma’s application should be dismissed on the basis that there is no reasonable prospect that it will succeed at a full hearing on the merits.
The Tribunal found that Mr. Sharma’s objection to wearing a mask did not fall within the meaning of “creed”. The Tribunal noted that while a political perspective that forms a “recognizable cohesive belief system or structure” might constitute a creed, Mr. Sharma’s objection was “mere political opinion” that was not protected under the Code.
After being provided details of Mr. Sharma’s medical conditions, the Tribunal found that his claim fell within the broad definition of “disability” within the Code. Despite this finding, the Tribunal found that Mr. Sharma’s application could not succeed because he had not alleged a denial of services by the City as the named respondent, as opposed to by the various businesses purporting to apply the Bylaw. The Tribunal found that the City could not be faulted for the alleged conduct of businesses that may be incorrectly applying the Bylaw.
Importantly, the Tribunal clarified how businesses may administer their masking policies and observed that, overall, businesses must engage in a “co-operative sharing of information” with those seeking exemptions from the Bylaw. A business may question a person who is seen not to be wearing a mask. If so questioned, that person must identify to the business that they have a medical condition or other reason requiring an accommodation that exempts them from the policy’s requirement to wear a mask. Upon being informed of the person’s need for an exemption to the Bylaw, a business must not require proof. Patrons ought to be permitted to access the service unless to do so would amount to undue hardship to the business.
The Tribunal ultimately found that, for the reasons above, Mr. Sharma’s application had no reasonable prospect of success and dismissed the application.
Takeaways for Employers
The Sharma decision reminds employers that requests for an exemption or accommodation from masking requirements must be assessed on a case-by-case basis to determine if they engage protected grounds under the Code, along with potential protections under the Bylaw. It is important that employers strive to implement tailored solutions, as employees and patrons are entitled to reasonable accommodation to the point of undue hardship.
While employers may request information to verify a person’s Code-related accommodation needs and determine what accommodations are appropriate in the circumstances, this ability is potentially fettered by restrictions prohibiting employers from requiring “proof” of an exemption to the Bylaw. The Tribunal has made clear that human rights law generally does not require persons seeking accommodation to disclose that they have a specific medical diagnosis. However, in the context of the Bylaw and other similar laws, it remains unclear what other information would constitute “proof” that cannot be required of members of the public and certain employees seeking exemptions. Accordingly, employers must be careful not to violate the Bylaw or similar applicable laws by requesting more information from such persons than is needed.
When it comes to certain employees who may be exempt from the masking requirements under the Bylaw and for which employers may not be able to seek “proof”, employers may consider a more generalized request for medical limitations without a specific reference to masks.
Outside of the context of the Bylaw, when it comes to businesses that are not open to the public, if employees refuse to wear masks in workplaces on the basis of a protected ground under the Code, employers will need to balance both their health and safety obligations to their entire workplace against their accommodation obligations to the specific employee by engaging in a cooperative process for more information.
Ultimately, employers would be well advised to take a careful approach to requests for exemptions or accommodations from masking requirements. Employers should implement clear and comprehensive procedures to address refusals to comply with masking requirements, including by having accommodation policies, and seek advice to ensure that such procedures are compliant with all applicable laws and public health requirements.
This blog is provided as an information service and summary of workplace legal issues.
This information is not intended as legal advice.