Reasonable Doubt: Some clarity on mask policies and human rights

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      We are on the tail end of the latest COVID-19 wave. This winter, many of us got sick with COVID-19 or knew someone who did. This spring, there are signs that we are slowly heading back to the Before Time.

      This month, the B.C. Provincial Health Authority dropped its requirement for mask wearing in public indoor settings. Masks are no longer required in schools or on public transit, either.

      Next month, the Provincial Health Authority will no longer require proof of vaccination for accessing businesses and services. That said, individual businesses will be allowed to make their own mask or vaccine policies for their premises. That is an important qualifier.

      By putting the onus on individual businesses, they may become targets in a wave of complaints of human-rights discrimination. These would allege that a business, in keeping a mask or vaccine policy, has discriminated against someone who does not agree with the policy. 

      Here is a quick primer on human-rights law in B.C. The Human Rights Code sets out five areas of daily life where we are protected from discrimination. These areas are employment, housing, services, membership in unions/associations, and publications.

      In these “protected areas” of daily life, discrimination based on certain personal characteristics is forbidden. These characteristics, listed in the Code, are commonly referred to as the grounds of discrimination.

      The B.C. Human Rights Tribunal is responsible for processing and deciding on human-rights cases. In the first year and a half of the pandemic, the tribunal was swamped with complaints of discrimination relating to masks or vaccines. They reportedly received twice as many complaints as what they were capable of handling. There were so many that their website put up an entire page devoted to mask and vaccination requirements.

      Their website addresses how the tribunal views mask policies. In general, a business is allowed to set these policies for its premises so long as it is based in evidence, made in good faith, and allows for reasonable accommodation. People who cannot wear a mask due to a protected characteristic (e.g., physical disability) are entitled to reasonable accommodation from the business.

      It's important to note that accommodations don’t need to be extreme—only reasonable. So what might be considered a “reasonable accommodation”? In certain instances, the tribunal has found that retail stores offering unmasked customers the option of outdoor pickup or online shopping have made reasonable accommodations. Because reasonable accommodations were made, the complaints against those businesses were dismissed.

      The tribunal takes a similar view of vaccination requirements. Last fall, it dismissed two complaints at the screening stage of the process. It took the extra step of publishing its decisions to inform the public on what constitutes human-rights discrimination. 

      In one of the published decisions, known only as Complainant v. Dr. Bonnie Henry, someone complained that he was denied services because of his unvaccinated status. He explained his reluctance to vaccinate by saying that he has asthma, had childhood pneumonia, and was reluctant to take an “experimental” vaccine.

      The tribunal outlined three critical requirements for discrimination. First, there must be a personal characteristic that is protected by the Code. Second, there must be adverse impact in one of the areas of daily life that is protected by the Code. Finally, the protected characteristic and the adverse impact must be connected.

      In that case, the tribunal acknowledged that the complainant’s asthma could be a physical disability, which is a characteristic protected by the Code. However, the complainant had not actually been denied any services. He made his complaint only on hearing news about the vaccine mandate. The tribunal saw that there was no actual adverse impact but, at most, the prospect of adverse impact.

      Even if there was an adverse impact, the tribunal noted there was no connection between asthma and not getting a vaccine. The man’s asthma did not prevent him from getting vaccinated. Distrust of the vaccine was not enough to connect any physical disability to any adverse impact. As a result, the tribunal refused to allow this complaint to go any further.

      In the second published case, known as Complainant v. John Horgan, the tribunal dismissed a complaint of discrimination of political beliefs by an employer. The tribunal stressed that although political beliefs can be protected, the protection does not exempt anyone from following public health orders. Instead, it protects someone from discrimination for their political beliefs.

      Again, the tribunal clarified the requirement of discrimination: a protected characteristic (such as political beliefs) must be connected to an adverse impact in a protected area (such as mistreatment by an employer). 

      Businesses are faced with difficult decisions on whether to continue COVID-19 safety measures. They need to ensure the safety of staff and customers but remain respectful of everyone. This pandemic has forced us all to consider how to balance individual choice with the health of the general public. The tribunal’s decisions give some clarity as to where that balance lies.

      A word of caution: You should not act or rely on the information in this column. It is not legal advice. To ensure your interests are protected, retain or consult a lawyer. The author’s opinions are based on news reporting and not on any firsthand knowledge or any personal involvement of those cases.