Failure to allow exemptions under mandatory mask order constitutes human rights discrimination, city’s accessibility committee says. Ian Kaufman
March 26, 2021
THUNDER BAY Disability advocates are warning local businesses that failure to respect exemptions to mandatory mask policies constitutes discrimination under the Ontario Human Rights Code.
The City of Thunder Bay’s Accessibility Advisory Committee recently raised concerns that at least one business had posted a sign refusing entry to anyone not wearing a mask, “stating that persons unable to wear masks into the business are required to order purchases online.”
The committee brought the issue forward in a letter to the Thunder Bay Chamber of Commerce, asking it to re-educate its members on the provincial legislation requiring business owners to accommodate those who cannot wear masks due to a disability.
“Unfortunately, there are a number of people in the disabled community who are unable to wear masks, for a variety of reasons, and who cannot be served online,” said committee chair Tessa Soderberg. “Basically, creating signage like that is discriminating against people who for very legitimate reasons cannot wear a mask.”
Wearing masks is mandatory in public indoor spaces including businesses under the Reopening Ontario Act, but orders made under the act include clear exemptions.
The mandatory mask order does not apply to those “unable to put on or remove their mask or face covering without the assistance of another person,” or who are otherwise “being accommodated in accordance with the Accessibility for Ontarians with Disabilities Act.”
Those claiming exemption under the act are not required to provide any proof. That has allowed some abuse of the policy by those who simply don’t want to wear a mask, Soderberg believes.
“I don’t think [the sign refusing service] was specifically aimed at people with disabilities, it’s just that we happen to get caught up in that grouping,” she said.
“It’s similar to the challenges we’re facing with people claiming their pets as service animals, and then making it that much more difficult for [those with] legitimate service animals. You have people who are just refusing to wear a mask, or claiming they can’t, and not necessarily legitimately.”
Accommodation for people whose disabilities prevent them from wearing masks could include arranging alternate pick-up times or speaking with the person outdoors, if they agree, she said.
However, she emphasized the bottom line is that businesses cannot legally refuse entry to someone claiming an exemption.
Charla Robinson, president of the Thunder Bay Chamber of Commerce, said many business owners did look to alternatives like outdoor service and online or phone bookings to accommodate customers who cannot wear masks.
She acknowledged the responsibility to accommodate under the AODA, but said the mask policy put owners in a difficult position, with customers often uncomfortable with seeing others maskless, and concerns over enforcement.
“It’s a very challenging situation, because as an employer, the labour inspectors are coming to their business to make sure on their checklist that all of your employees are wearing masks, you’re requiring your customers to wear masks, you’ve got all of these pieces in place,” she said.
“Then when a customer comes in and isn’t wearing a mask, it does put them in a bit of a challenging situation as to, how do we manage this appropriately?”
Under an instruction letter sent to businesses by the Thunder Bay District Health Unit in July of 2020, when the mandatory mask order was introduced, staff are required to verify a customer not wearing a mask is claiming an exemption.
“When a customer or client is not complying with mask requirements, they must be asked to put on a mask,” health unit guidance states. “Businesses must recognize that there are exemptions for individuals who are unable to wear a mask. The law does not require a person to provide proof of their exemption.”
The chamber plans to meet with the Accessibility Advisory Committee in the near future to better understand the concerns and reinforce exemption rules, Robinson said.
“We look forward to working with the Accessibility committee to develop messaging that will help businesses understand how they can address these issues and make sure everyone is accommodated appropriately.”