REFUSING ENTRY TO PATRONS WITHOUT A MASK: DISCRIMINATION OR PROTECTION OF THE HEALTH AND SAFETY OF THE PUBLIC?
Wearing a mask has become a contentious issue here in Australia during the COVID-19 pandemic, particularly in the State of Victoria. On the one hand, masks are seen as an effective tool to decrease the likelihood of transmission of the virus, on the other, the enforced requirement to wear a mask is viewed as a breach of fundamental human rights.
Another common point of contention is business owners denying patrons entry to their premises for refusal to wear face masks, even in instances where a medical exemption applies. Can business owners lawfully do this, or is this categorised as discrimination?
In short, if a business owner denies entry to a patron, who has a lawful excuse not to wear a mask, this can be classed as unlawful discrimination under the Equal Opportunity Act (‘The Act’). It is important for business owners who provide goods and services, to acknowledge that under section 44 of the Act, a person must not discriminate against another person—
(a) by refusing to provide goods or services to the other person; or
(b) in the terms on which goods or services are provided to the other person;
The Victorian Government has stated that if an individual has a medical exception to wearing a mask, businesses should not deny entry. A medical exemption, or a lawful excuse, can include but is not limited to: a condition which makes it difficult to breathe, a serious skin condition on the face, an intellectual disability, a mental health condition, or have experienced trauma.
When a patron enters your premises without a mask, all that is required, is that the individual inform the business owner that they have a medical exemption to not a wear a mask. No medical certificate, or any justification as to their medical condition is required. If a business owner requests a medical certificate, or the like to be provided to verify an individual’s medical condition, this in itself can constitute discrimination under the Act.
Business owners should also be wary of denying entry to a patron not wearing a mask, who has a disability, noting that this can be classed as discrimination under the Australian Disability Discrimination Act 1992. Where a business owner is aware of a patron’s disability, or is told by the patron directly that they have a disability, business owners should make ‘reasonable adjustments’, and this includes, entry to their premises notwithstanding they are not wearing a mask.
In the event you as a business owner find yourself the subject of a discrimination complaint, you have the possibility of arguing that any alleged discriminative conduct falls under the general exception to discrimination, under section 86 of the Act. Section 86(a) of the Act states that a person may discriminate against another person on the basis of disability, or physical feature, if the discrimination is reasonably necessary:
(a) to protect the health or safety of any person (including the person discriminated against) or of the public generally.
Therefore, if you as a business owner deny entry to a patron for not wearing a mask, and the patron has a medical exemption, if your refusal is based on the protection of the health or safety of any person, or the public generally, then this may be viewed as lawful discrimination.
Consider the following example:
A medical clinic has denied a patient entry to their clinic as the patient refused to wear a mask, despite the patient confirming they had a medical exemption. The patient subsequently makes a discrimination complaint against the medical clinic.
In this instance, the clinic can argue that the refusal to deny entry to patients without a mask, even those with medical exemptions, is for the general health or safety of their patients and the public in general. This is a reasonable argument given medical clinics may have various high-risk patients, including, patients over the age of 60, patients who are pregnant, or those with disabilities, impairments or severe-immuno-compromised disorders.
The Victorian Human Rights Commission note the following factors which can be taken into consideration when determining whether discrimination was lawful:
1. “How long people generally stay inside the building when receiving the goods or services;
2. whether it is possible to stay 1.5 metres away from each other inside the building;
3. the type of people who use the goods and services and whether there is a heightened risk they will suffer severe symptoms if they contract COVID-19 (for example people over 60 or people with respiratory conditions);
4. the consequences of refusing access to the goods and services whether alternative measures could have been put in place to protect staff and customers; and
5. the rate of community transmission at the time service is refused.”
It should be noted that any individual who is considering making a discrimination complaint against a business owner, needs to establish a clear link between their medical condition, or disability, and being unable to wear a face mask.
If you are a business owner who is the subject of a discrimination complaint or find that you are wanting to learn more about your rights in refusing patrons who do not wear a mask with a medical exemption, please contact us at De Marco Lawyers for legal advice.
Given the rapidly evolving circumstances surrounding COVID-19, additional information may affect this article. To see whether this information relates to you, we ask that you ring our office on (03) 9304 9500.
This article is intended only to provide a summary of the subject matter covered. It does not purport to be comprehensive or to render legal advice. No reader should act on the basis of any matter contained in this article without first obtaining specific professional advice.
DISCLAIMER: We accept no responsibility for any action taken after reading this article. It is intended as a guide only and is not a substitute for the expert legal advice you can get from De Marco Lawyers and other relevant experts.