Canadian Employment Law Today

Canadian HR Reporter, 2021 The worker refused to wear a face mask, saying that his "religious creed" prevented him from wearing one. The manager reiterated the requirement and said that the worker could not enter the facility without a mask. The worker refused once again and was told to leave. A short time later, a senior manager sent the worker a letter terminating his contract since he couldn't work at the facility if he couldn't or wouldn't wear a mask. The worker filed a human rights complaint against the facility managers, claiming that they discriminated against him based on the protected ground of religion. He said that his religious belief was based on the idea that "we are all made in the image of God, a big part of our image that we all identify with is our face. To cover-up our face arbitrarily dishonours God." The worked also said that religious liberty allowed him to identify his face to others and the mask requirement infringed on his "God given ability to breath [sic]." Worker didn't believe in masks The worked added that he didn't believe that wearing face masks was effective against COVID-19 and "forced mask wearing does not help protect anyone from viruses." He pointed to the fact that the provincial health office, at the time it implemented the mask- wearing requirement, said that businesses had pushed to enforce the measure, not because of safety reasons. The worker asserted that he felt there was no safety issue and data showed that enforcement of masks made no difference in the spread of the coronavirus. The B.C. Human Rights Tribunal noted that there had been a large number of complaints alleging discrimination related to the govern - ment's requirement to wear face coverings indoors during the pandemic, so it would publish its decision in this matter even though it was only screening the complaint to be accepted for a hearing — screening decisions were not normally published. The tribunal also ordered a limit on the publication of the name of the worker, the employer and the managers. The tribunal noted that, in order to prove discrimination, the worker had to demonstrate that his reason for refusing to wear a mask was based on a real religious belief, the managers' conduct had an adverse impact on him regarding his employment and that his reli - gious belief was a factor in the adverse impact. The tribunal noted that the worker was contracted to perform work at the facility, so it wasn't clear if he was actually an employee. Since only work in employment relationships was protected under the B.C. Human Rights Code, more information about the contract would have to be provided if the matter proceeded to a hearing. However, for the purposes of the screening decision, the tribunal opted to assume that the worker was an employee and he lost work because of the requirement to wear a mask in the facility. As a result, the worker did suffer an adverse impact in his employment, said the tribunal. The tribunal found that the worker's objec - tion to wearing a mask was based on his opinion that it didn't stop the transmission of COVID-19, making the requirement arbitrary. The worker didn't provide any evidence that any particular religion prohibited the wearing of a mask, either objectively or subjectively, or that not wearing a mask "engenders a personal, subjective connection to the divine or the subject or object of spiritual faith." Personal preference not religious belief The tribunal referred to another recent deci - sion it had made in the case of a customer who had refused to wear a mask in a store — The Customer v. The Store — where it stated that the code "does not protect people who refuse to wear a mask as a matter of personal preference, because they believe wearing a mask is 'point - less,' or because they disagree that wearing masks helps to protect the public during the pandemic." The tribunal found that the worker's complaints were about his disagreement with the reasons for the mask-wearing requirement and not any religious belief. As a result, his opinion about masks being ineffective was not protected from discrimination on the basis of religion and there was no protected ground that was a factor in the adverse impact experi - enced by the worker in his employment. The tribunal determined that the worker's complaint would have no prospect of success in a hearing and dismissed it for not setting out a possible contravention of the province's Human Rights Code. For more information, see: • The Worker v. The District Managers, 2021 BCHRT 41 (B.C. Human Rights Trib.). • The Customer v. The Store, 2021 BCHRT 39 (B.C. Human Rights Trib.). 6 | | June 2, 2021 June 2, 2021 « from B.C. WORKER'S on page 1 No evidence any religion prohibited people from wearing face masks Certain types of privacy prevail regardless of employer's policy Cases and Trends Cases and Trends The worker said that he didn't believe that wearing masks was effective against COVID-19 and the order to wear them inside was arbitrary. « from ASK AN EXPERT on page 2 practical considerations are also important for employers: • Employers should review their computer and internet terms of use to ensure that the language is unequivocal and clear for employees. • Employers should also review these policies regularly with employees so that employees know what their expectation of privacy is and how their use of employer- provided computers can impact that expec - tation of privacy. • Employers should only conduct searches of employer-provided computers when there is reasonable cause to do so. Unreasonable or overly broad investigations may result in a court or arbitration board deeming the evidence inadmissible. • When employers elect to search an employer- provided computer, it should be cognizant of certain types of privacy that will continue to prevail even where a strong policy is in place, such as clearly intimate or personal informa - tion about the employee, solicitor-client communications and select communications with the employee's union. For more information, see: • R v. Cole, 2012 SCC 53 (S.C.C.). • BC Hydro & Power Authority v. International Brotherhood of Electrical Workers, Local 258, 2017 CanLII 146770 (B.C. Arb.). • SGEU v. Unifor, Local 481 (2015), 255 LAC (4th) 353 (Sask. Arb.). • Elementary Teachers Federation of Ontario v. York Region District School Board, 2020 ONSC 3685 (Ont. Div. Ct.). • See Poliquin v. Devon Canada Corp, 2009 ABCA 216 (Alta. C.A.). Tim Mitchell practises management-side labour and employment law at McLennan Ross in Calgary. He can be reached at (403) 303-1791 or tmitchell@mross.com.

• Cover