Are ‘No Mask – No Entrance’ Policies Discriminatory in Alberta?

The Human Rights Tribunal of Alberta (the “Tribunal”) recently dismissed two separate discrimination complaints arising out of corporate policies that required all customers, without exception, to wear a mask for access into retail premises in:

  • Beaudin v Zale Canada Co o/a People’s Jewellers, 2021 AHRC 155 (“People’s Jewellers”); and,
  • Szelez v Costco Wholesale Canada Ltd., 2021 AHRC 154 (“Costco”).

The big takeaway from these two decisions is that mask policies requiring customers to wear a mask to enter retail stores or other premises, without exception for persons with medical conditions preventing mask wearing, do not violate human rights law in Alberta.

This holds true as long as such policies are (or were at the time a complaint arose) based on either current public health regulations, or comprehensive and scientifically-verified medical information.

The corporate policies in place at the time of the complaints at both People’s Jewellers and Costco required all persons (including staff and customers) to wear a mask before entering into retail premises to protect the health and safety of everyone on-site.

People’s Jewellers’ Mask Policy

People’s Jewellers’ policy was still in force for all store locations at the time of the alleged discrimination, despite the fact that masking in retail stores was no longer a public health requirement in Alberta. People’s Jewellers prepared the policy according to the advice of medical professionals, and it was based on peer-reviewed medical research.

As an alternative to mask-wearing, People’s Jewellers’ policy offered telephone shopping by appointment, online shopping, home delivery and curb-side pick-up.

Costco’s Mask Policy

While Costco’s policy was similarly brought about by the COVID-19 pandemic, the company developed and implemented the policy in accordance with and in response to active provincial and municipal public health requirements. The public health requirements in place at the time recognized that some persons would be unable to wear a mask for medical or other reasons.

As an alternative to mask-wearing, Costco’s policy required the company to provide customers with a face-shield or, alternatively, offer various online and home delivery options.

The Discrimination Complaints Against Mandatory Masking

Complaints of discrimination arose in both cases when the companies denied entry to customers in accordance with their respective masking policies.

In People’s Jewellers, the complainant was refused entry despite having a disability that prevented him from wearing a face mask. Meanwhile, the complainant in Costco identified as having a disability that prevented him from wearing a face mask. He refused to wear a face shield provided to him by a Costco employee and alleged that to do so would have been stigmatizing and humiliating.

The complainants alleged that People’s Jewellers and Costco discriminated against them in the area of goods, service and accommodation on the ground of physical disability, in contravention of section 4 of the Alberta Human Rights Act, RSA 2000, c A-25.5.

Tribunal Finds Respondents’ Masking Policies Were Not Discriminatory

Ultimately, the Tribunal dismissed both complaints, which found that although prima facie discrimination was established, neither complaint had a reasonable basis to proceed.

As a starting point, the Tribunal acknowledged that policies requiring masks be worn for entry on-site will have an adverse impact on those persons with disabilities that prevent them from wearing a mask and would therefore be prima facie discriminatory.

Moving to the next stage of the analysis, the Tribunal considered whether the companies introduced the policies for a valid and legitimate business purpose and in good faith. The Tribunal also examined whether there were alternatives to accommodate those negatively affected without incurring undue hardship.

Notably, the Tribunal’s analyses in these cases reveal the following:

  • Valid and legitimate business purpose. Where provincial and municipal mask mandates are in force, it is clear that corporate policies requiring masks for access to retail premises have a valid business purpose. However, in the absence of public health directives or orders, having accurate and comprehensive medical information to support the policy will suffice to show a valid and legitimate business purpose.
  • Good faith. Masking policies developed for a valid purpose (i.e. employee and public safety) that follow medical advice of the time are introduced in good faith.
  • Reasonably necessary. This inquiry considers whether it was impossible to otherwise accommodate individuals (i.e. customers) sharing the characteristics of the complainants without imposing undue hardship on the company. Policies requiring customers to wear masks prior to entry are reasonably necessary where they are supported by public health policies and regulations or epidemiological information or both.

These decisions demonstrate that mask policies requiring customers to wear a mask to enter retail stores or other premises do not violate human rights law in Alberta. Organizations should consider current public health regulations, or comprehensive and scientifically verified medical information, before implementing such policies to ensure they are legally compliant.

Our labour and employment team is available to assist employers as they consider their workplace policies and approach to managing their workforce in light of the continually evolving COVID-19 pandemic. Please contact a member of our labour and employment team to discuss your particular circumstances.

Note: This article is of a general nature only and is not exhaustive of all possible legal rights or remedies. In addition, laws may change over time and should be interpreted only in the context of particular circumstances such that these materials are not intended to be relied upon or taken as legal advice or opinion. Readers should consult a legal professional for specific advice in any particular situation.

Authors: Jean Torrens, Julie Ward