Mandatory Masks and Claims of Discrimination: What does it mean for businesses?

Mandatory Masks and Claims of Discrimination: What does it mean for businesses?

Mandatory Masks and Claims of Discrimination: What does it mean for businesses?

With the recent introduction of compulsory mask wearing for residents of metropolitan Melbourne, and Mitchell Shire implemented on 23 July 2020, and the expansion of these rules to cover all of Victoria this weekend, we have seen the Media flooded with examples of people refusing to wear masks in public, particularly when entering retail spaces where the standards are being upheld by way of “no mask, no entry or service” type policies. Oftentimes, these publicised confrontations involve the patron claiming legal entitlement to their freedom to enter without a mask, and that they are being discriminated against.

As a result, Proclaim has been approached by some of our clients, who seek to understand the potential (if any) legal ramifications of “no mask, no service or entry” policies”. Is it possible that a client can argue that they have been legally discriminated against if their entry is denied because they are not wearing a mask?

At a webinar held this week with our corporate clients in the retail and hotel industries – there was a lot of concern and discussion about the uncertainty of their obligations and what would be considered unreasonable refusal. Proclaim’s view is that retailers and service providers have the right to prescribe the conditions of entry to their store or operating locations, and that they should be across the daily updates within their State and industry.

Olivia Castrisios, Senior Account Manager in Proclaim’s Corporate team, took time to investigate this further, canvassing solicitors that Proclaim works with in an attempt to understand and define this matter.

It is generally agreed that owners of locations with high public foot traffic and potential for increased human to human proximity, like Shopping Centres, can and should refuse entry to persons not wearing a face mask  so as to protect other patrons and their staff from the risk of infection.

There are some certain customers, though, that should still be allowed entry under the DHHS discrimination laws and the Federal Disability Discrimination Act 1992. In this case, the patron must be able to show show that they fall within the exceptions provided by the DHHS (available here), one of which may be if the patron has a “relevant medical condition”.

One of Proclaims clients recently had a customer stating they had Asthma which gave them an exception to wearing a mask within the premises. In this case, a centre is entitled to ask the customer for proof of that breathing problem (if not readily apparent). This could be in the form of a doctors certificate, or other evidence (e.g. carrying a ventilator, in this case).

Interestingly, though the DDA makes it unlawful for a person to discriminate against another person on the ground of that person’s disability by refusing them entry to premises which would otherwise be open to the public, there is an exception which provides that it is not unlawful to discriminate if avoiding the discrimination would cause “unjustifiable hardship”, and that could possibly be relevant given the COVID-19 pandemic.

In summary, centres are entitled to refuse entry to persons who are not wearing a face covering and cannot show that they fall within an exception, but should be willing to take customers’ word if they are able to provide reasonable evidence when requested.

To assist you in managing your risk and to prevent situations like this occurring, Proclaim would recommend:

  1. Putting a notice on your website stating the terms of entry, and that by law patrons need to wear a face covering unless they have a lawful excuse;
  2. Place signage on your entrance doors outlining the above; and
  3. Instruct and train your staff and security to understand what circumstances and evidence could be considered reasonable for a patron to not wear a mask.

Although masks are not mandatory in other States and Territories yet, implementing the above is still good risk management and can assist in defending future claims if there is a potential outbreak in your centre or property.


Written by Olivia Castrisios