Guidance for Retailers Considering Mandatory Mask Policies for In-Store Customers

RCC has received a number of recent enquiries in relation to retailer-mandated “no exceptions” mask policies, particularly in light of more frequent instances of customers challenging such policies and, in some cases, refusing to wear a mask.  This brief note provides reassurance that it is a retailer’s prerogative to determine which customers may enter its stores and that mask use can be stipulated as a condition of entry.  We also provide some limited advice on how to best insulate retailers from successful human rights complaints.

The following is aimed at providing members with general guidance on the legal and customer relations issues associated with the implementation of a mandatory mask policy. This is for guidance only and is not meant to be legal advice. In addition, legal issues can vary by province. Accordingly, we encourage members to seek legal advice from their own counsel to obtain definitive guidance in relation to your store(s) across the country.

If you are a small independent retail member and require more assistance on this matter, please do not hesitate to contact RCC. or 416-922-6678 or 1-888-373-8245

Generally speaking, retailers are fully free to control who may enter their stores and to set policies relating to appropriate health and safety precautions in-store, providing that they do not discriminate. In light of the COVID-19 pandemic, many retailers are implementing a mandatory mask policy for customers who enter their store(s), with no exceptions allowed. Such definitive policies are likely justified if you are of the view that they are needed in order to sufficiently protect the health and safety of your employees and of all customers – both to reduce the risk of COVID-19 exposure, and to reduce the risk of conflict in your store(s) between those wearing masks and those not wearing masks.

However, these strict policies may result in complaints from some customers who claim that they should be entitled to an exception based upon applicable protected human rights grounds (typically disability). In such cases, you should be prepared to make appropriate and reasonable accommodations for the customer to allow them to shop without entering the store (e.g. offer online shopping or provide curbside delivery).

Alternatively, you may choose to allow exceptions in your policy – based upon customers claiming that they can’t wear a mask due to protected human rights grounds. Either way, this may sometimes lead to difficult situations at store level. If you allow entry without a mask based upon a legitimate exception, you may still have an aggrieved customer (because they believe their privacy rights were infringed in the course of them seeking an exception) and you may risk conflict in your stores (with other customers who were required to wear masks). On the other hand, if you do not allow exceptions, you may have an aggrieved customer who may bring a human rights complaint (because they take issue with being refused entry notwithstanding the reasonable accommodations you offer) and you may risk alienating other customers who just don’t like the strict policy.

So, as you can see, there is no definitive easy answer to these issues. However, in our judgement, the following approach will help you minimize these risks:

  1. As explained above, retailers have the right to control entry into their stores and may impose a mandatory mask policy with no exceptions allowed. If you do so, you should provide appropriate and reasonable accommodations for customers who claim that they cannot wear a mask, as outlined above. By doing so, you can reduce (but not fully eliminate) the risk of a human rights complaint.
  2. Some retailers may choose to weigh the benefits and risks of a mandatory policy v. a policy with exceptions – and choose which best fits your business and your company values.
  3. Whichever approach you take, ensure that your employees are appropriately trained on the policy and that it is applied even-handedly and consistently.
  4. Consider providing signage at the entrance of the store(s) explaining your policy.  If you are adhering to the mandatory mask policy with no exceptions, it is advisable to also provide information on the appropriate and reasonable accommodations you may be providing to customers claiming they can’t wear masks.
  5. Consider seeking local legal advice considering the variance in provincial human rights laws and provincial and local mask laws.

In summary, as these issues are complex and often lead to emotional reactions from customers, whichever approach you take will still have some risk. However, we hope that this discussion will help you take the best approach for your business and minimize these risks.

Karl Littler
SVP, Public Affairs
(416) 906-0040 Cell