Disclaimer: The following statement does not constitute legal advice. It is provided only for information purposes, and does not suggest what, if any, decision might be made by the Human Rights Commission in reviewing or accepting any specific complaint.
The Newfoundland and Labrador Human Rights Commission recognizes these are stressful and anxious times. The protection of human rights is always important and necessary. Human rights law balances a person’s right to be free from discrimination and harassment with the public’s right to general health and safety. The Human Rights Commission has compiled some human rights best practices for employers and service providers.
Please note that these best practices may change as the COVID-19 situation evolves.
For more information about COVID-19 check out the Government of Newfoundland and Labrador’s website at www.gov.nl.ca/covid-19/. Follow us on twitter or Instagram for updates @nlhumanrights
Discrimination and Harassment
The Human Rights Act protects people from discrimination and harassment in Newfoundland and Labrador.
Stress and fear about COVID-19 is never an excuse to discriminate against or harass someone. COVID-19 is not isolated to people of any particular nationality, ethnic or social origin, or race. Denying someone employment or access to a service based on one or more of the prohibited grounds is discrimination. Making racist comments in person or online perpetuates stereotypes and can amount to harassment under the Act. Instead, we should treat everyone with dignity and respect and stand up to discrimination and harassment in our communities.
If you feel you have been discriminated against or harassed based on one of the prohibited grounds, please fill out a Complaint Form: Human Rights Complaint Form
Non-Medicinal Masks
The Chief Medical Officer of Health can make mandatory mask orders in certain circumstances and it is best to check thepublic health guidelines to stay up-to-date. These orders apply to all people, workplaces and service providers in the province.
Employers and service providers can also set their own rules about the use of masks in their workplace or business. These rules are considered appropriate in the circumstances and do not violate the Human Rights Act. These measures are considered necessary to protect public health in the least intrusive way possible.
Vaccine Passports
As of June 1, 2022, the Province no longer requires proof of vaccination to access previously restricted employment and services. However, private sector employers and service providers may still implement Health and Safety Policies that require proof of vaccination.
For more information on the Government of Newfoundland and Labrador’s vaccination policies, visit: Mandatory Vaccination – COVID-19 (gov.nl.ca)
If you have specific concerns about provincial government policies related to the COVID-19 pandemic, contact the Member of the House of Assembly (MHA) for your area. Contact information for all provincial MHA’s can be found here: House of Assembly – NL – Members
Private Sector Policies on Masks, Vaccines and Testing Requirements
Regardless of Government mandates, employers and service providers can implement Health and Safety Policies that can include mandatory vaccination, testing and/or mask-wearing.
Health and Safety policies need to meet the three-part test for reasonable justification as set out by the Supreme Court of Canada in Meiorin and Grismer. This test requires that (1) the employer or service provider adopted the policy for a purpose rationally connected to the function being performed, (2) the policy was implemented in good faith and (3) that they reasonably accommodated adversely impacted individuals to the point of undue hardship.
For more information on the Duty to Accommodate, see our Employer’s Guide to the Human Rights Act and/or Responsibilities of Service Providers.
Case Study:
Ratchford v Best Buy Canada Ltd. is a decision from the B.C. Human Rights Tribunal which addressed the duty to accommodate in the context of an individual asserting that they could not wear a mask due to a disability. This individual requested to be exempt from the health and safety policy of a Best Buy store that required staff and patrons to wear masks. It was determined by the tribunal that the mandatory mask wearing policy implemented by Best Buy satisfied the first two steps of the Meiorin/Grismer test. In the particular circumstances of this case, Best Buy employees offered to bring the Complainant products to look at if he remained in the doorway of the store and there was also an option to shop the products online. The Tribunal considered these alternate forms of accommodation as sufficient to discharge Best Buy of its duty and found no discrimination.
Being asked to take a COVID test or put on a mask is not inherently discriminatory under the Human Rights Act, even if it makes you feel uncomfortable. If you feel as though your employer or a service provider has implemented a health and safety policy that negatively impacts your privacy, bodily autonomy, or personal dignity, please refer to ‘Other Resources’ below for help finding the right Department to assist you.
Employers and Service Providers should discuss the implementation of any of the above policies with a legal profession to ensure the proper balancing of interests between public safety and individual privacy, bodily autonomy, and personal dignity. Unionized workplaces should also ensure all policies are in accordance with their Collective Agreement. See ‘Other Resources’ below for help finding a lawyer.
Is this discrimination…?
Your workplace implements a policy that requires all staff to wear a mask while at work. Because COVID-19 is a serious health concern this policy is not inherently discriminatory, however, the following additional facts may or may not change that:
Fact set #1: Not all staff are being required to follow the mask wearing policy. You have noticed that only workers of Asian heritage are being reminded of the policy and reprimanded for not following it. Being treated adversely on the basis of your race is discriminatory under the Act.
Fact set #2: You have a disability that prevents you from wearing a mask. You notified your employer of your disability and requested to wear a face shield while maintaining a distance of 6ft from others instead of wearing a mask. Your employer denies this request and fires you. Your employer has a duty to accommodate your disability to the point of undue hardship. Being fired for having a disability that prevents you from participating in a workplace policy could be determined to be discriminatory under the Act.
Fact set #3: You don’t like wearing a mask because it is itchy and annoying, plus you don’t believe that it makes a difference in preventing the spread of COVID-19. You tell your employer that you won’t wear a mask and were fired for not adhering to company health and safety policies. Being uncomfortable or not agreeing with a company policy is not a protected ground under the Human Right Act. This would not be considered discrimination.
Fact set #4: In addition to the mask-wearing policy, your workplace also requires all staff to be clean shaven which they claim is required so that masks will fit properly. You are Sikh and wearing a beard is required by your religion. When you explain this to your employer, they demote you to a position that requires no interaction with the public so you are not required to wear a mask, but this also results in a reduction to your pay. Moving an employee to another position to bypass a mask wearing policy may seem like accommodation, however, a demotion is still adverse treatment under the Act. Especially when considering that there are other options available that could successfully accommodate the religious belief without requiring a demotion.
Accommodation
Employers and service providers must develop and implement policies in accordance with the Human Rights Act. This means that every individual is treated equally and is free from discrimination and harassment with respect to the prohibited grounds. This includes administering policies in a way that accommodates individuals based on their needs associated with the prohibited grounds listed in the Act. This duty to accommodate applies to employers, businesses and service providers up to the point of undue hardship.
In order to be accommodated, an individual will need to inform their employer or service provider of their need and may be required to produce a note or other information confirming that there is a legitimate reason why they cannot wear a mask or be vaccinated. The individual must also participate in the accommodation process by discussing their needs and being open to alternative approaches to the accommodation. A good example of this is the Ratchford v Best Buy case discussed above, where the Complainant refused to consider that alternative accommodations presented to him.
In providing an accommodation, some degree of hardship must be accepted by employers, businesses, and service providers. Undue hardship may be present if the requested accommodation creates health and safety risks to others, be inordinately expensive or not allow a person to do their job properly. If the undue hardship rule is met, the person requesting the accommodation may face the choice of complying with the policy, being terminated or being denied access to a service.
Disability related accommodations need a medical note or information that says there is a legitimate medical reason why the person cannot wear a mask or get vaccinated and how long this exemption might apply (eg. a serious allergy to the vaccine). This requirement aligns with the decision in Cummings v. Nenan Dane Zaa Deh Zona Family Services Society, that medical or expert evidence can be required as part of a Complainant’s evidentiary burden when establishing a case of discrimination [see paras 229-230].
Religious or religious creed accommodations need proof that a complainant is under a religious obligation to refuse vaccination or other health and safety requirements. This obligation must be rooted in a sincerely held belief that is connected to the religion, particular faith, or genuinely held religious belief of the Complainant. The Supreme Court of Canada looked at religious belief in depth in the case Syndicat Northcrest v Amselem. In that decision, they held that
- A Complainant must establish that they have a religious belief that obligates them to refuse the vaccine or other health and safety policy at issue. That belief must be sincerely held and have a connection with their relationship with the divine or other subject of their spiritual faith.
- There is no difference between a religious practice that is dictated by a churc/religious leader and a personal chosen religious practice. This means that a complainant can bring evidence supporting their claim from a faith leader, but it is not required.
- Determining if a religious belief is sincerely held involves assessing the credibility of the claim and whether the belief is consistent with the complainant’s religious practice.
- The interference with the complainant’s religious belief must be more than trivial or insubstantial
- Even if the complainant can meet all 4 requirements above, consideration still must be given to the impact the practice of their religion has on others. Conduct that would potentially cause harm or interference with the rights of others would not be automatically protected.
A person who chooses not to wear a mask or be vaccinated because of a personal choice or belief without a connection to religion is not protected under the Human Rights Act and does not have the right to be accommodated.
To assist those who have a legitimate reason they cannot wear a mask or be vaccinated, some best practices for service providers and businesses might include:
- Having a phone number or email for people to discuss accommodation options in advance
- Providing alternative means of accessing a service such as home delivery, curbside pick-up or scheduling appointments at less busy times
- Not requiring minimum orders, charging delivery fees, etc. will help remove financial barriers for those unable to participate in mask-wearing policies when shopping
- Providing free masks or face shields and hand sanitizer at the front door
For Employers, accommodation for those prevented from participating in a health and safety policy might include:
- Accepting a negative COVID test and/or requiring mask-wearing in lieu of a vaccine requirement
- Working modified shifts, social distancing or working from home
Establishing that they have a legitimate reason not to wear a mask or be vaccinated does not result in unfettered freedom from all public health mandates, or health and safety policies. Individuals requesting accommodation are required to participate in the process in good faith.
We recommend employers, employees, businesses, services providers and those wishing to access a business or service have open, clear, and respectful conversations addressing how you can work together to ensure accessibility and safety.
Other Considerations
Barriers to Vaccine Access and Testing
Vaccines are considered safe, effective and the best way to protect people from serious illnesses like COVID-19. Where appropriate, consider removing barriers to equitable vaccine access and testing. Some examples of barriers to equitable vaccine access and testing may include:
- Language barriers or lack of access to phone or internet connection make it harder for some to find information about vaccination or testing
- Older people or people living with disabilities may have difficulty booking or going to their vaccine or testing appointment; consider offering extra supports as needed
- Low-wage workers with multiple jobs and caregiving responsibilities may lack the time or resources to prioritize visiting a vaccination site or taking a test
- Undocumented people and people experiencing homelessness face a variety of barriers relating to the lack of government-issued ID, fear of revealing immigration status, and mental health and addiction disabilities
- Individuals and groups who have faced discrimination or traumatic experiences while receiving health-care services may not trust vaccines or testing
- Lack of plain language information about the importance of vaccination
Other Resources
The Office of the Citizen’s Representative accepts complaints from citizens who feel they have been treated unfairly with respect to their contact with government offices and agencies. Contact their office OCR (citizensrep.nl.ca) if you have faced an unreasonable barrier to a government program or service as a result of your vaccination status.
If you have specific concerns regarding the collection, use and/or disclosure of your personal health information, please contact the Office of the Information and Privacy Commissioner: Contact | Office of the Information and Privacy Commissioner, Newfoundland and Labrador (oipc.nl.ca)
To discuss the impacts of COVID-19 outside of the human rights context (including compliance with the Charter of Rights and Freedoms, establishing whether policies comply with privacy and other laws) it may be helpful to talk to a legal professional. The Public Legal Information Association (PLIAN) is a lawyer referral service and legal information line: Contact Us – Public Legal Information Association of NL (PLIAN)
Alternatively, you can check the Law Society’s online lawyer directory: Law Society of Newfoundland & Labrador (memberpro.net)
If you have limited financial resources, consider contacting Legal Aid: Welcome to Legal Aid – Legal Aid
If you have specific concerns about government policies related to the COVID-19 pandemic, contact your elected officials. For provincial policies, contact the Member of the House of Assembly (MHA) for your area. Contact information for all provincial MHA’s can be found here: House of Assembly – NL – Members. For federal policies, contact your Member of Canadian Parliament: Find Members of Parliament – Members of Parliament – House of Commons of Canada (ourcommons.ca)
*Many thanks to the British Columbia and Ontario Human Rights Commissions and to colleagues across the country whose work has informed this guideline.