In Sharma v. Toronto (City), 2020 HRTO 949, the Human Rights Tribunal of Ontario (HRTO) provides a roadmap for how employers should determine whether they are required to accommodate employees and customers who seek exemptions from the City of Toronto’s mask-wearing requirement.  Enacted in response to the pandemic, By-Law 541-2020 (By-Law) requires businesses and other establishments open to the public to adopt a policy to ensure that no member of the public is permitted entry to, or otherwise remains within, any enclosed space unless they are wearing a mask or face covering (collectively, a “mask”).   

Background

In his human rights application, the Applicant alleged that the City of Toronto (i.e., the Respondent to the application) discriminated against him with respect to services because of his creed and disability, contrary to Ontario’s Human Rights Code (Code), because due to the By-Law, he was denied service at a number of businesses. 

The Applicant alleged he was unable to wear a mask for the following reasons:

1. Creed: his creed disagrees with wearing a mask for unsubstantiated claims, and claims that masks prevent or stop the spread of the coronavirus are not substantiated by scientific evidence (e.g., peer-reviewed randomized control trials); and

2. Disability:  he could not wear a mask due to bodily/biological/medical conditions.  Although the By-Law exempted persons who have an underlying medical condition that inhibits their ability to wear a mask, those with disabilities or medical conditions should not be required to explain or prove this to businesses/establishments. 

The HRTO directed that a summary hearing be held to address whether the application should be dismissed. 

Decision

The HRTO dismissed the application at the summary hearing because the Applicant did not allege specific acts of discrimination by the City and therefore his application had no reasonable prospect of success. 

In conducting its analysis, the HRTO focused on whether the Applicant’s allegations may be reasonably considered a Code violation.  It found that the Applicant’s objection to wearing a mask did not fall within the meaning of “creed,” which is not defined in the Code:

…but most often engages an applicant’s sincerely held religious beliefs or practices…mere political opinion does not engage creed.

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. (paras. 11 and 12)

With respect to disability, the Applicant provided details of two specific medical conditions during the hearing, and the HRTO concluded that both fell within the broad definition of “disability.”  Nonetheless, the application failed on the ground of disability because, as required by human rights law under the Code, the By-Law: (a) recognizes that businesses have a duty to accommodate those with disabilities, and (b) requires a business’ policy to contain exemptions for those who cannot wear masks for medical reasons.   

The HRTO noted that the shared accommodation process requires an individual to identify that they have a disability-related need that requires accommodation:

In the context of the By-Law, this means that, if questioned, an individual must identify to a business that they have a medical condition or other reason requiring an accommodation that exempts them from the business’ policy’s requirement to wear a mask.

It is important to note, however, that the By-Law and human rights law generally do not require an individual seeking accommodation to disclose that they have a specific medical diagnosis.  (paras. 20 and 21)

The HRTO acknowledged that in some cases an individual seeking accommodation will be required to provide information to verify their accommodation needs, but noted that the By-Law provides that a business’ policy must not require members of the public to provide proof of an exemption; rather, once an individual indicates that they have a medical condition or otherwise require accommodation exempting them from the mask-wearing policy, the individual is to be permitted to access to the service.  The HRTO noted also that, “A business’ duty to accommodate is not infinite, but rather ends at the point of undue hardship.” (para. 21)

The HRTO also held that, depending on the facts and evidence, it was possible that businesses that lectured, harassed, turned away and banned the Applicant after he told them that he is unable to wear a mask may have breached the Code.  However, it stated that since the Applicant did not name any businesses as Respondents to his Application, this issue was not before it.   

Ultimately, the HRTO dismissed the application on the basis that it had no reasonable prospect of success because the Applicant did not allege adverse treatment by the City, but by businesses not named as Respondents.  The HRTO found that the City itself did not discriminate against the Applicant and “…the alleged conduct of the businesses that the applicant says have denied him services cannot be laid at the City’s feet.” (para. 29)

Bottom Line for Employers 

Sharma v. Toronto reminds employers:

1. When an employee or customer refuses to wear a mask in accordance with the By-Law on the ground that they are being discriminated against on a protected ground under the Code, the employer is obliged to consider whether the objection falls within such ground.  If the employer determines that the objection does fall within a protected ground, the employer has a duty to accommodate the individual to the point of undue hardship. 

2. Under the Code, it is unlawful to discriminate based on their “creed.”  An individual’s objection to wearing a mask will not engage “creed” within the meaning of the Code if the objection is based on the belief that the ability of masks to stop or prevent the spread of COVID-19 is unsubstantiated by scientific evidence. 

3. When an employee or customer asserts that they have a disability that requires accommodation (i.e., an exemption from a mask-wearing policy), the employer should not require them to disclose their specific medical diagnosis. 

4. Although in some cases an employee or customer seeking human rights accommodation may be required to provide information to verify their need for accommodation, the By-Law provides that a business’ policy must not require such proof; once an individual indicates that they have a disability exempting them from a mask-wearing policy, the employer must accommodate the individual to the point of undue hardship.  “Undue hardship” includes consideration of health and safety risks, among other factors.

5. Any accommodation from a mask-wearing policy must take into account the employer’s duty under the Occupational Health and Safety Act to take reasonable precautions to protect workers from the risk of interacting with unmasked individuals during the COVID-19 pandemic.  As more of the population is vaccinated, the urgency of providing such protection will presumably diminish.  In the meantime, to provide such protection, employers may wish to consider asking employees exempted from the mask-wearing policy to work from home if that is feasible. 

Employers faced with claims of discrimination because of mask-wearing policies must consider whether the claim is justified.  If the employer determines that the objection does fall within a protected ground under the Code, it has a duty to accommodate the individual to the point of undue hardship.  Employers are encouraged to seek the assistance of experienced employment counsel in determining whether accommodation is required in a particular case.