The Public Health Agency of Canada has stated that non-medical masks play a critical role in preventing the spread of COVID-19. Masks act as a barrier and reduce the chance of spreading infectious respiratory droplets to others and prevent infectious droplets from landing on surfaces from coughs or sneezes.

The Ontario Government has published its “ COVID-19: Health, safety and operational guidance for schools (2021 – 2022 )” ² which requires that students in Grades Kindergarten to 12 wear properly fitted non-medical or cloth masks indoors in school and on school vehicles.

Niagara Region Public Health has stated that masks are one of the measures, along with vaccination, hand hygiene, self-screening and physical distancing, that protect against COVID transmission. Face masks are therefore important for protecting staff and students, and for keeping schools open.

It is not a parent’s choice whether their child will wear a mask while attending school. It is a school board requirement pursuant to Ministry of Education direction, in consultation with the Ontario Chief Medical Officer of Health for the health and safety of students and staff. The face mask requirement supports the Board’s obligation as an employer under the Occupational Health and Safety Act ³ to   “ take every precaution reasonable in the circumstances for the protection of a worker ”, ⁴ and a duty of Niagara Catholic District School Board Principals under the Education Act , ⁵ s.265(1)(j)(k)(l)(m) to protect students in schools.

A municipal bylaw such as the Niagara Region’s By-law 2020-46 regarding mask wearing in spaces open to the public does not apply to schools. Specifically, the Region’s By-law that people do not need to provide proof that they have a medical condition to be exempt is not applicable to schools.

Schools are not public spaces, and s.2(4)(b) of Ont. Reg. 364/20 Rules of Areas in Stage 3, promulgated under the Reopening Ontario (A Flexible Response to COVID-19) Act, 2020 , ⁶ exempts school boards from the general requirements and exemptions imposed on businesses and service providers open to the public.

The Niagara Catholic District School Board recognizes that, for medical or other reasons, it may not be possible for some students to wear a non-medical face mask at school, and that individual accommodations must therefore be developed.  

An exemption on medical grounds is available only to those students who have been diagnosed by a regulated health professional with a disability which prevents them from wearing a face mask. A disability is defined under the Ontario Human Rights Code ⁷ , and has been reproduced as part of this AOP (Appendix A). A regulated health professional is defined at Schedule 1 of the Regulated Health Professions Act 1991, ⁸ attached to this AOP (Appendix B).    

Examples of a disability which could limit or preclude wearing a face mask include a respiratory illness, or a sensory, developmental or mental health condition.

A parent/guardian seeking an exemption on the grounds of a disability must complete the Request for Exemption Form attached to this AOP (Appendix C), and provide the following information from their child’s regulated health professional:

·   the nature of the disability preventing their child from wearing a face mask;

·   how the disability affects the child’s ability to wear a mask;

·   whether their child is medically prohibited from wearing a mask for some or all activities at school;

·   whether their child’s disability will temporarily or permanently prevent them from wearing a mask;

·   measures if any which would assist their child to develop the skills or tolerance for wearing a mask;

·   sufficient additional detail regarding the impact of the disability so that school staff can develop appropriate accommodations.

If a medical note contains insufficient details with respect to any of the above, a principal is entitled to ask for further written clarification, or for consent to speak with the student’s health professional directly.

If a student has been diagnosed with a prevalent medical condition as defined by the Ministry of Education’s Policy/Program Memorandum 161 “Supporting children and students with prevalent medical conditions (anaphylaxis, asthma, diabetes, and/or epilepsy) in schools ” ⁹ , the Board will also be responsible for ensuring that it has enough detailed information to establish a Plan of Care. T he Niagara Catholic District School Board will work with parents/guardians and health care providers to develop and implement a Plan of Care, which will include accommodations for the student’s disability and any limitations on their ability to wear a face mask.

The Ministry of Education’s direction to consider a student’s need for a medical exemption from the Board’s mask requirement are consistent with the Ontario Human Rights Code, which states that school boards must provide educational services without discriminating on the basis of disability. ¹⁰   

A person alleging discrimination on the basis of a disability has the burden of establishing that they have a disability, as defined by the Code. ¹¹ Where a disability has been established, pursuant to the process outlined above, Niagara Catholic District School Board has a duty to accommodate the disability to the point of undue hardship, taking into account “the cost, outside sources of funding, if any, and health and safety requirements, if any.” ¹²  

While a medical condition must be diagnosed by a regulated health professional, the manner in which the medical condition is to be accommodated is determined by the principal, in consultation with the student, their family, and the health professional, as may be appropriate under the circumstances. 

Determining the appropriate accommodation for a student who cannot wear a face mask due to a disability is a process requiring an individualized assessment of the student’s particular needs, taking into account school safety requirements during a pandemic.

Parents have a responsibility to actively participate in the accommodation process, which includes providing sufficient medical information to support the development of appropriate accommodations.   

Alternative measures to accommodate a student with a disability, while providing safe work and learning spaces, may include:

·   mask breaks;

·   gradual extension of mask time to increase tolerance;

·   a face shield;

·   installation of a plexi-glass barrier;

·   increased social distancing;

·   a separate learning environment; and/or

·   remote learning.

The Ontario Human Rights Code also prohibits discrimination on the basis of creed. However, the Human Rights Tribunal has ruled that a belief about the efficacy of masks in reducing the risks of COVID-19, or an opinion about whether masks should or can be mandated in schools, does not constitute a creed under the Human Rights Code . ¹³   

A person asserting a claim that their creed prevents their child from wearing a face mask at school will be asked to provide evidence that their belief system, and this tenet of their faith, meets the criteria set out by the Human Rights Commission in its “ Policy on Discrimination Based on Creed ”, ¹⁴ and related jurisprudence.

Section 2 of the Charter of Rights and Freedoms ¹⁵ states that:

Everyone has the following fundamental freedoms:

(a) freedom of conscience and religion;

A mere assertion that a person is exempt from the face mask requirement on the basis of the Charter is insufficient to invoke the protection of the Charter. In order to be exempt from Niagara Catholic District School Board’s face mask requirement on the basis of Section 2 of the Charter , a person must provide a court declaration that the Board’s mask requirement breaches their right to freedom of conscience and religion.

The Personal Health Information Protection Act, 2004 , SO 2004, c 3, Sch. A (“ PHIPPA ”) does not prevent school boards from collecting the personal health information of students.

Niagara Catholic District School Board’s authority for collecting personal information, including personal health information, is found in s.28(2) and 29 of the Municipal Freedom of Information and Protection of Privacy Act , R.S.O. 1990, c.M.56. The health information being collected is not for the purpose of providing health care, but rather to provide accommodation pursuant to the Human Rights Code to facilitate a student’s attendance at school. ¹⁶   

Information regarding a student’s disability and related needs must be maintained pursuant to the Board’s policies and procedures relating to privacy and confidentiality.

The Personal Information Protection and Electronic Documents Act , SC 2000, c 5 (“ PIPEDA ”) is federal legislation, which does not apply to school boards.

The Education Act provides that children of separate school supporters residing in the jurisdiction of the Board have the right to access education, ¹⁷ and that the school attendance of such children aged 6 to 18 is compulsory. ¹⁸ Attendance at a virtual school of the Board satisfies the access to education and compulsory attendance requirements under the Act .

Principals are responsible for ensuring that all students not subject to an approved exemption wear a face mask while indoors at school, except when eating or drinking, and on school vehicles.

If a student attends school without a mask, principals should provide the student with a mask, and request that they attend in future with their own mask.

If a student refuses to wear a mask, even after one has been provided, principals are directed to call the student’s parent/guardian to remove their child from school. Students will be asked to wait for their parents in a supervised alternate space, separate from other staff and students.

Students who continue to attend without a mask and without an approved exemption may be excluded from physically attending school pursuant to s.265(1)(m) of the Education Act, and will be provided with access to remote learning.

Parents are encouraged to advise of any intent for refusal to wear a mask in advance of school attendance, so that all possible steps can be taken to avoid making a student uncomfortable.

APPENDIX A

Human Rights Code RSO 1990, c H.19 :

APPENDIX B

Regulated Health Professions Act 1991, SO 1991, c 18

SCHEDULE 1

SELF GOVERNING HEALTH PROFESSIONS

APPENDIX C

Niagara Catholic District School Board

Request for Exemption Form

_______________________________________     ___________________________

Parent/Guardian Signature           Date