July 6, 2020
On Friday June 26, 2020, Kingston, Frontenac, Lennox and Addington Public Health issued an Order under s.22 of the Health Protection and Promotion Act that requires businesses and municipal facilities to prohibit entry to people who are not wearing a face covering, with specific exemptions noted. Despite these clearly stated exemptions, a number of people in the community have reported being refused service because their face is not covered. This blog post will take a look at competing rights and obligations when it comes to face coverings under the current Order.
So, who is exempt from wearing a mask? According to the Order there are three broad exemptions:
- where a person is a child under the age of two years; or a child under the age of 5 years either chronologically or developmentally and he or she refuses to wear a face covering and cannot be persuaded to do so by their caregiver;
- where a Face Covering would inhibit the Person’s ability to breathe in any way; and
- where for any other medical reason, the Person cannot safely wear a Face Covering such as, but not limited to, respiratory disease, cognitive difficulties or difficulties in hearing or processing information.
This means that the general obligation to require face coverings would not apply in these situations. The order is silent about what proof would be sufficient or required to demonstrate exemption, although KFLA Public Health has since clarified on its website that documentation is not necessary and customers should not be turned away. We also do not know the consequences for a business that incorrectly or mistakenly permits an exemption.
Can a business prohibit entry to someone without a face covering, even with some sort of proof of exempted status?
This is certainly an area where business owners should tread with caution. The Human Rights Code explicitly prohibits discrimination based on a disability, and it is likely that most conditions preventing someone from wearing a mask would be considered disabilities by the law. The Ontario Human Rights Commission has taken the position that someone who cannot wear a mask must be accommodated up to the point of undue hardship, and cannot be denied service completely, although “accommodation” may involve providing services by other means. It is important to note that the Commission is different from the Ontario Human Rights Tribunal, which decides cases under the Code; if someone is refused service because they cannot wear a face covering, it will be up to the Tribunal to determine whether they have experienced discrimination.
So what does accommodation look like? Although the Tribunal has not yet had the opportunity to weigh in, it will likely depend on the circumstances. In some cases, a business might be able to provide similar service in a different way – for example, curbside pick-up. In other cases, there may not be an alternative. For example, refusing washroom access to someone dining on a patio who is unable to wear a mask would likely be discrimination. It is also important to consider that the quality of the accommodated services should not be less than the standard service. Requiring someone who cannot wear a mask to wait two weeks for a curbside pick-up slot, instead of the same-day service received by other patrons, may not be adequate accommodation. All staff should be advised about the exemptions to the mask wearing order, how the exemption is to be applied, and accommodations for those who fit into these categories in order to ensure consistency among customers or clientele.
Businesses should also consider how they accommodate customers who do not fall within a medical exemption to wearing a face covering but who may require an alternative service accommodations for other reasons. While many people who are deaf or hard of hearing may be physically tolerant face coverings, masks on others impede the ability to read lips and muffled voices may be harder to hear. The Accessibility for Ontarians with Disabilities Act (the AODA) and the Human Rights Code both set out obligations, which should be reviewed. Businesses will need to establish best practices, which may include increased use of written communication. It may also be prudent to remind staff that someone who does not respond to verbal instructions may be unable to hear them and, therefore, unaware that they are being addressed.
Lawyers can assist business owners and exempted individuals in these matters. A lawyer can help draft policies that are clear and consistent with the obligations under the Order, the Human Rights Code, and the AODA, to prevent issues before they arise. If someone has been denied service because of a genuine medical condition that provides an exemption under the Order, a lawyer can help them understand their rights and options for addressing this barrier.
If you have any questions, please do not hesitate to reach out to us.