Mandatory Mask Policy Does Not Breach Human Rights Act – Employment and HR
To print this article, all you need is to be registered or login on Mondaq.com.
In Szeles v Costco Wholesale Canada Ltd.,1 the Chief of the Commission and
Tribunals (the “Chief”) of the Alberta Human Rights
Commission (the “Commission”) dismissed a complaint
alleging that Costco had discriminated against a customer with a
disability who refused to wear a mask or face shield.
In November 2020, the customer attended at a Costco store in
Edmonton, Alberta and was told that he had to wear a mask under the
company’s COVID-19 policy. The customer indicated that he was
exempt from masking requirements because of a disability. The
customer also refused Costco’s offer to wear a face shield as
an alternative. An altercation ensued, the police were called and
the customer was removed from the store.
The customer filed a complaint with the Commission alleging that
Costco had discriminated against him in the area of goods, services
and accommodation on the ground of physical disability, in
contravention of the Alberta Human Rights Act (the
A Human Rights Officer assigned under the Act conducted an
investigation and recommended that the customer’s complaint be
dismissed. The customer then requested that the Chief review the
Human Rights Officer’s recommendation.
Are mandatory mask policies discriminatory?
1. Adverse Impact
The initial question for the Chief was whether Costco’s
policy had an adverse impact on persons protected under the Act. In
this case, the Chief found that Costco’s policy
did have an adverse impact on persons with certain
disabilities who may be unable to wear masks. However, limitations
on human rights can be justified in certain circumstances.
In particular, a limitation is justifiable where it is:
- instituted for valid reasons;
- instituted in the good faith belief that it is necessary;
- reasonably necessary, meaning it is impossible to accommodate
persons who may be adversely affected without incurring undue
To establish the third aspect of the test, Costco needed to show
that it considered the least intrusive options, and made every
effort to accommodate the customer’s disability-related needs,
short of undue hardship.
2. Valid Reasons
The Chief found that Costco had a valid business purpose for
instituting the policy in light of the mandatory public health
regulations in place. Costco also provided substantial information,
based on public health guidance and epidemiological research, that
its policy was instituted for a valid business and safety
3. Good Faith
The customer provided no basis for his allegation that
Costco’s policy had been established in bad faith, and with the
purpose of singling out persons with disabilities for humiliation.
The Chief also noted that there was nothing in the provincial and
municipal public health regulations that prohibited businesses like
Costco from instituting policies requiring the use of masks by
employees or customers.
4. Reasonably Necessary Limitation
The customer argued that the alternative offered by Costco;
namely, wearing a face shield, was unreasonable because it did not
offer protection against the transmission of COVID-19. In his view,
the use of a face shield was also stigmatizing, was meant to single
him out as a person with a disability, and would subject him to
humiliation. He also argued that other available alternatives such
as curbside pickup and on-line shopping did not provide equivalent
service (among other things).
The Chief was not persuaded by the customer’s arguments.
Costco had provided substantial information from local and
international health organizations that face shields may be an
alternative to, albeit not as effective as, wearing masks.
Moreover, according to the Chief, a less effective measure does not
undermine the reasonableness of the restriction.
The Chief also noted that the customer’s concerns regarding
curbside pickup and on-line shopping were purely hypothetical.
There was no evidence that any of the concerns raised actually
impacted the customer. The Chief did not agree that these
alternatives would impose any serious limitations on the
Therefore, the Chief upheld the Human Rights Officer’s
recommendation and dismissed the customer’s complaint. However,
the Chief was cautious to note that he was making no decision on
what outcome might be appropriate in other circumstances.
Recently, the Chief also released his decision in Beaudin v
Zale Canada Co. o/a Peoples Jewellers,2 wherein he dismissed a similar
human rights complaint from a customer against a business’
mandatory mask policy even though there was no government mandate
requiring mask wearing at the time. In that case, the business had
offered online and telephone shopping as alternatives.
These are promising decisions for businesses that have
implemented robust measures to protect the health and safety of
customers and employees during the COVID-19 pandemic. Businesses
should continue to follow provincial and municipal regulations, and
also institute their own written policies expressly offering
accommodations for persons with disabilities (such as curbside
pickup, on-line shopping and telephone shopping). Businesses should
be prepared to apply their policies reasonably and flexibly based
on the particular circumstances of each case.
1. 2021 AHRC 154
2. 2021 AHRC 155
The foregoing provides only an overview and does not
constitute legal advice. Readers are cautioned against making any
decisions based on this material alone. Rather, specific legal
advice should be obtained.
© McMillan LLP 2021
POPULAR ARTICLES ON: Employment and HR from Canada
Tags: Costco – Mandatory Mask Policy Does Not Breach Human Rights Act – Employment and HR