Mask regulations: does one size fit all?

Mask regulations: does one size fit all?

About Allan DoughtyAllan Doughty

Allan’s practice focuses on tort law including negligence and personal injury cases, contractual disputes, human rights and antidiscrimination law, constitutional law, public law and judicial review, medical law including clinical negligence, coroners’ inquests, privacy law, and professional disciplinary law.

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Recently, I was involved in a conversation concerning the requirement of wearing cloth and paper masks in Bermuda. At that time, the discussion centred on whether it is possible to apply for an exemption from having to wear a mask when attending a business or office. My short answer to that question was “no”, as there was nothing that I had seen in Bermudian law that allows for such an exemption. That answer, however, bothered me.

While I fully support the widespread wearing of masks, as a means of mitigating the spread of the coronavirus, I am perplexed by the implications of the “one size fits all” rule that everyone must wear masks when entering a business or office.

Is it right that a deaf person, who is able to read lips, must attempt to converse with a person who is required by law, during the course of the pandemic, to wear a mask? What if there is an individual who suffers from a genuine psychological issue that causes discomfort or panic when wearing a mask? How should the law treat someone who has a genuine breathing issue that is exacerbated by wearing a mask?

In considering the implications of how this rule can affect people with disabilities, we must first understand the source of the Government’s authority to require the public to wear masks. As Bermuda’s shelter-in-place order was expiring, the Public Health Act was amended so as to allow the Minister of Health to declare a “Public Health Emergency” and to empower the Governor to pass regulations that were suitable for dealing with a public health crisis.

The amendment, however, also held that if such regulations were passed, they would supersede all other Bermudian statutes, including the Human Rights Act. It was on that basis that a Public Health Emergency was declared on June 30, 2020 and our existing regulations came into effect that same day, continuing the requirement that masks be worn while entering offices and businesses. Although these new regulations will last for only 90 days, the Minister of Health has the power to declare a new Public Health Emergency at the end of this and every emergency period. For that reason, it is possible that Bermuda will continue to live under regulations of the type that are in force at present for the duration of the coronavirus pandemic.

While these regulations are necessary, they are also extraordinary given their supremacy to the Human Rights Act. This exemption from the jurisdiction of the Human Rights Act is of critical importance to those who may have legitimate medical, accessibility or psychological challenges in wearing a mask, as it is the Human Rights Act that was designed and tasked with dealing with such issues.

For example, if the Human Rights Act could be applied to the new regulations, the requirement that physically or psychologically challenged employees wear a mask while at work could be struck down, as the Act requires that disabled employees be accommodated short of undue hardship.

If the ability to work from home was not possible for such an employee, this could have created a fatal flaw for the mask requirement, if the Human Rights Act applied. Furthermore, under the Act, it could be argued that refusing service to a person who is legitimately incapable of wearing a mask also amounts to unlawful discrimination, which again would have left the regulations open to a court challenge if the Human Rights Act actually applied.

While it is certainly correct that the new regulations are subject to our Constitution, that particular instrument does not prohibit discrimination on the basis of physical or mental disability. For that reason, it seems at present that the only option that may be available to a person who has a genuine medical, accessibility or psychological issue with wearing a mask is that of judicial review by the courts, which is expensive and uncertain.

There is, however, another way to deal with this issue, which is to amend the regulations. In doing so, the Governor, after consulting with the Minister of Health, could allow individuals to apply for a licence that would grant an exemption from wearing a mask while in public that is tailor-made to their circumstances. However, such a licence should be granted only after the individual applicants have satisfied the minister that the request is made out of genuine physical, medical or psychological need and that the requirement to wear a mask otherwise amounts to undue hardship.

Such a licence should also contain strict conditions and instructions concerning the exemption because the rights of the individual will also need to be balanced against that of the public. For example, if a person is deaf and presents such a licence to a cashier, per the instructions of the health ministry, the cashier may then remove their mask provided that both individuals and all other customers remain beyond the minimum safe distance of six feet.

Alternatively, if a person has psychological or breathing issues, the licence may allow for limited, mask-free, in-store service provided that all other maximum precautions are taken by the individual and the business to minimise the potential transmission of the virus per the instructions included with this licence.

In offering these suggestions, I note that the Government of Bermuda has managed a Herculean task in dealing with the Covid-19 threat and should be given credit for the steps it has taken to date in dealing with this crisis. Having said this, I expect that it will be some time before a vaccine is made widely available in Bermuda. For that reason, I now urge the Government to carefully consider whether “one size” can truly “fit all” under the regulations.

Accordingly, it is my view that the Government should begin working towards a means whereby those who may be genuinely unable to wear a mask in public may be legally accommodated while continuing to safeguard the interests of the general public.