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30 July 2020
Business Law

How to deal with the mask requirement and the medical conditions exemption ? A merchant’s perspective.

To claim that the new rules on face-covering are the subject of heated debate is an understatement.  

Some are happy to do so, while others refuse, citing various justifications, ranging from simple discomfort or even an unlawful infringement of their fundamental rights. 

Based on recent consultations with our clients, one of these justifications appears to be particularly problematic. What should a retailer do when a customer cites a medical condition as justification for refusing to wear a mask or a face covering in their business? 

To answer this question, we need to examine the Order in Council passed on July 15th, which obliges operators to require the wearing of a mask or face shield by anyone entering their business. Without going into detail and in a rather simplistic manner, the concept of “commerce” is very broad and encompasses the vast majority of commercial premises to which the public has access.  

THE OPERATOR’S LIABILITY 

There is no mistake.  

This decree imposes on merchants the obligation to control the wearing of masks in their establishments.  

Baring exceptions, the decree prohibits “the operator of a place that welcomes the public from admitting a person who does not wear a face-covering or tolerating the presence of a person who does not wear a face covering.” 

The merchant’s obligation is therefore twofold: (1) the merchant must insure that an person admitted in the premises wears the face covering, and (2) if a person enters without authorization, for example, the merchant cannot tolerate that person within the business; meaning reasonable steps must be taken to expel him or, at least, to compel him to wear the face-covering. 

Incidentally, the definition of face coverings in the Order in Council also imposes, in our view, an obligation to ensure that any person entering the business continues to wear a proper face covering; that is to say, “a mask or a close-fitting cloth that covers the nose and mouth”. 

Finally, operators who fail to comply with these requirements are subject to penalties ranging from $400 to $6,000. 

EXCEPTIONS 

The decree provides nine exceptions relieving the merchant from requiring the wearing of face coverings.  

Since this health measure’s entry into force, we have been consulted specifically on only one of these exceptions, the second; the exception that allows a person to be exempted from wearing a face-covering if this person “declares that their medical condition prevents them from doing so.” 

Of course, in most cases, we were consulted regarding people claiming to have such a medical condition, but who also refused to give the slightest detail regarding same, which caused a certain amount of discomfort and raised many questions. We were therefore asked whether merchants should simply respect these refusals and allow this person to enter the premises without wearing any face covering. 

As a reflex, we immediately saw it as a question of fundamental rights and privacy, but we believe that by focusing on the tree, we are losing the forest. 

There is no doubt that a person can fundamentally refuse to disclose to a third party a physical condition from which he or she suffers. We shall not dwell either on the exceptional circumstances that could legally justify a reasonable infringement of this right. 

THE SIMPLE SOLUTION 

We prefer to focus on the “other trees in this forest”: the employees who work and the other customers who frequent the business. 

As for the employees, the Act Respecting Occupational Health and Safetyimposes on the employer (e.i.the merchant) the onerous obligation to provide its employees with a workplace and “working conditions that have proper regard for [the workers’] health, safety and physical well-being.” The same Act allows an employee to refuse to work there “if he has reasonable grounds to believe that the performance of that work would expose him to danger to his health, safety or physical well-being, or would expose another person to a similar danger.” So is the merchant-employer caught in the crossfire? Not necessarily. 

We believe that a merchant who allows a person who refuses to comply with a health measure in the event of a pandemic to enter his or her business represents a serious risk. The fact that this person, as per his right, refuses to disclose the nature of their medical condition only adds to that risk. We believe that a merchant who allows such a person on the premised could easily be accused of not fulfilling its obligations to maintain the health, safety, and physical integrity of its employees.    

This is particularly true in light of the fact that, barring exceptions, the customer does not have a strict and immutable right to visit the business. Although this solution is not perfect, by refusing access to this person, the merchant is properly fulfilling its duty to its employees, while respecting the right that this person invokes with respect to his or her privacy. 

The situation is similar for other customers. The fundamental rules of our laws provide that merchants have “a duty to abide by the rules of conduct incumbent on [them], according to the circumstances, usage or law, so as not to cause injury to another.” Clearly, these rules of conduct imply not only compliance with the provisions of the Order in Council, but also any other reasonable health measures to ensure the safety of others.   

It seems to us that the refusal to admit a client in their establishment who refuses, for whatever reason, to submit to a health measure can be construed as the fulfilment of this obligation.   

Obviously, a merchant who fails to meet this obligation almost certainly incurs civil liability towards his other customers. It is a good bet that the investigations conducted by the authorities which quickly identify the source of outbreaks will serve the cause of infected customers wanting to sue an imprudent merchant for damages. In such a case, the damages potentially sought from the delinquent merchant are not likely to be limited to the $400 to $6000 penalties described above. 

Thus, during the pandemic, the solution for merchants, although imperfect, will be to establish a clear policy which denies access to any person who invokes a physical condition to justify his refusal to wear a face covering. In cases where this is possible, it would also be appropriate to find another way to serve the customer who is thus denied access, e.g. online or telephone orders, delivery or pick-up, dedicated clerks, etc.  

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