Agree to Disagree – Can you refuse entry?

There are two issues I want to talk about this week: wearing masks at small businesses, and the reopening of schools.

Let’s talk about the first one today.

Over the last week, it was brought to my attention that the directive about mask wearing in public spaces is at best ambiguous. We know there are exceptions, and we know that those exceptions are allowed to not wear the mask But does a small business owner have the right to refuse entry to those who claim having an illness, be it physical or mental, that makes it impossible for them to wear said mask? I thought so.k? I thought so.

Reports of individuals circulating the downtown area, demanding to be let into businesses, and claiming that it is an infringement on their Civil Rights to refuse them entry made me want to dig a little further.

The EOHU directive, in its integrity, does not stipulate anything about the subject. However, I found a Q&A page on the EOHU website that said: “No person should be required to provide proof of exemption or turned away from indoor public spaces if unable to wear a mask.” I was baffled. Did that mean a small businesses owner could not refuse entry to a customer not wearing a mask? Clearly not as the Health Unit changed the wording on their site after I sent them a letter asking for clarification.

For my own peace of mind as a business owner, I alos consulted with a lawyer. This is new to everybody and even the law is unclear about the legalities of it all.

But you’ve heard of no shoes, no shirt, no service, right? To me, the same policy should apply to masks.

“Debra”, an Ontario lawyer who prefers to remain unnamed, said that the problems lies in the fact that this could be construed as discrimination. “You can’t refuse entry to someone because they are disabled. This is similar. The laws are new of course. This is unprecedented,” she said.

So could an owner be sued for refusing entry to someone? In theory, yes.

“If someone is disabled and is requesting a reasonable accommodation, they usually have to provide a medical report detailing what they need. Then the store or restaurant owner has to decide if they can accommodate their special needs without undergoing undue hardship,” Debra continued. “If they can, then they must provide the accommodation. If they don’t, the disabled person can file a complaint with the Human Rights Tribunal and claim discrimination on the basis of disability.”

But in this case, we can’t ask for a medical report. Does that mean that you HAVE to let people in? It’s not like letting people in without a mask is something that would require adjustments, repairs or cost an owner anything, right?

Well, not so quick.

“It will cause undue hardship if it is a small business or restaurant, and the staff or patrons will be put at risk. That’s what I would argue,” ended Debra.

“It is a human rights issue,” confirmed Dr. Paul Paul Roumeliotis, our Medical Officer of Health at the Eastern Ontario Health Unit. “But overall an owner has the right to refuse on the grounds of protecting the health and safety of his/staff and clients. We will be clarifying this in our FAQ’s. Note that there are some exceptions: in a situation where, say, the store was the only store in town, then the human rights of the customer would prevail. But where there are other choices of shopping alternatives in the area, within a reasonable distance, then the owner’s rights would prevail,” he ended.

Personally, to cover all bases, if a customer insisted on coming in without a mask claiming I’m infringing on their human rights, I would try to offer an alternate means of service, such as curb side pickup or delivery, to show good will. I am no legal expert, but I think it would show good faith on my part, shall I end up in court.

Because, you know some will try to sue. I am sure we will see such cases pop up in Ontario in the next few months. But I certainly hope the law will get clearer and more defined on the topic as we move along.

No business owner should return to work feeling unsafe. Especially if we have to take the word of people at face value.

Update: We sent in for comments to the Health Unit on Sunday and today, July 29th, we noticed that the information on their website at https://eohu.ca/en/covid/frequently-asked-questions-eohu-directive-for-mandatory-masking-in-enclosed-public-spaces now clearly stipulates that the owner can deny entry. We’re happy to see that this ambiguity has been rectified.