Human Rights Tribunal of Alberta upholds mandatory mask policies

In two recent decisions, the Human Rights Tribunal of Alberta (the "Tribunal") dismissed complaints brought by customers who were denied entry into retail stores due to company policies that required all customers to wear a mask.

• Szeles v Costco Wholesale Canada Ltd.^[1] ("Costco"):  The complainant alleged discrimination on the basis of a physical disability preventing him from wearing a face mask. Costco offered customers alternatives to wearing masks in-store, including providing customers with face shields and offering online shopping and home delivery options.
• Beaudin v Zale Canada Co. o/a Peoples Jewellers^[2] ("Peoples Jewellers"): The complainant similarly alleged discrimination on the basis of a physical disability preventing him from wearing a face mask. Alternatives to this masking policy included telephone and online shopping with free home delivery or curbside pick-up.

Notably, the Tribunal recognized in both cases that masking policies can have adverse effects on persons with disabilities. However, the Tribunal also underscored the importance of public health guidance and evidence-based scientific information, and that the complainants both failed to demonstrate that the alternatives offered by the retail stores would impose any serious limitations. Conversely, it would amount to undue hardship for those businesses to permit individuals to enter their stores without wearing a face covering.

The key takeaway from these decisions is that a mask policy requiring individuals to wear a mask or face covering upon entering retail stores and other premises does not breach the Alberta Human Rights Act where:

• The policy is implemented for a valid reason or purpose: The mask policies were developed and implemented in light of provincial and federal orders, guidelines, and recommendations from the government and public health authorities with regard to COVID-19;
• The policy is implemented in good faith: The mask policies were implemented with a good faith belief that the policy's implementation was necessary for the purpose of protecting the health and safety of staff, patrons, and the community; and
• The policy is reasonably necessary: The mask policies were implemented to protect the health and safety of employees and customers against COVID-19 and it was impossible to accommodate individuals who may be adversely affected without suffering undue hardship.

Looking ahead, these decisions will be helpful for businesses and organizations that are implementing policies to protect the health and safety of their employees, patrons, and the community against COVID-19. Organizations should take into account current public health orders, guidelines, and scientifically-based medical information. For assistance in preparing and implementing COVID-19 policies, please contact a member of Gowling WLG's Employment, Labour & Equalities group.