BC resident files human rights complaint over Fraser Health N95 mask ban

A BC woman has filed a class complaint with the BC Human Rights Tribunal against Fraser Health over its policy of banning hospital patients and visitors to wear their own N95 masks to protect themselves from COVID.

Vancouver resident Lena Patsa had already started a petition asking the health authority to change its policy—but she filed the complaint with the tribunal earlier this month, after reading coverage by Burnaby Beacon about the issue.

“I got really, really, really angry. I was angry. But I think I reached a limit at that point, because I do have to go in to the hospital. I had surgery on Christmas Eve, and I’ve been frustrated since the beginning by the approach on N95s, which makes no sense to me,” she said.

Fraser Health requires people entering hospitals to remove their own face coverings, and wear a surgical mask provided by staff. That requirement, the health authority says, is in place to ensure that the masks are fresh, used only once, and of medical grade.

“When a visitor or patient presents to hospital with their own mask, such as an N95, we are unable to determine whether it meets safety standards or fits them as expected. Therefore, we provide everyone with a new surgical mask,” the health authority said in an emailed statement earlier this month.

Employers who require their staff to wear N95s also require fit-testing, as per the BC Occupational Health and Safety Regulation.

But in recent months, and particularly since the Omicron wave began, aerosol scientists and public health officials in many areas—not including BC–have begun recommending that the general public wear them when possible.

Canada’s chief public health officer Dr Theresa Tam was among those advising that Canadians upgrade to respirators if possible—and current guidance from the Public Health Agency of Canada says that the design of respirators allows for better fit than a medical mask.

Patsa told the Beacon that it doesn’t make sense that health officials elsewhere recommend the use of respirators in reducing aerosol spread of COVID, but officials here in BC do not.

“It’s not an opinion; it’s science. And it’s their responsibility to understand the science, because they’re making policies and guidelines that affect people’s lives and health.”

Patsa has had some health issues in the past few weeks and needed surgery on her leg. When she went to St Paul’s Hospital over Christmas, she flat out refused to remove her N95 mask. In her case, the team performing her surgery was supportive—Patsa and the anaesthesiologist made the decision that she didn’t need to receive full anaesthesia, so that she could keep her N95 on.

But she was worried that the next time she went in for an appointment, it wouldn’t be that easy.

“I woke up on a Saturday, realizing I hadn’t gotten my bloodwork done. And [that was] because I was afraid of being confronted with this again, or being forced to take the mask off,” she said.

“So I thought [filing the complaint] would be more constructive on my part, rather than go on Twitter and start swearing again, which I do sometimes.”

She’s also heard from other people dealing with health conditions or medical needs, including cancer, who are worried that they will end up catching COVID in hospitals—but that they don’t have many options.

“If you’re battling cancer and your choice is [to] let cancer crawl through your body or take the risk of getting COVID—which should not be happening—I am not blaming somebody for taking the risk,” Patsa said.

“But that should not be happening. It is not okay just because they agree to comply, they should not have been told [to take off their N95] at all.”

Nearly 600 people have signed Patsa’s petition so far, and she said many others have reached out to her after hearing about the class complaint to show their support.

When a class complaint is filed, the human rights tribunal must decide whether to accept it—there are several contributing factors to that decision, including whether the complaint sets out possible discrimination. In the case of a class complaint, the tribunal also looks at appellant is a suitable representative for the group that was allegedly discriminated against before accepting or rejecting the complaint.

Patsa understands the gears of the tribunal run fairly slowly and isn’t expecting her complaint to change anything in the short term. But, she said, the pandemic isn’t likely to be over anytime soon—and there could be another pandemic in a few years.

Nonetheless, she’s optimistic that the tribunal will side with her eventually.

Fraser Health said in an emailed statement that it’s been notified of the complaint filing, and will respond if tribunal proceedings begin.

The Ministry of Health, meanwhile, said it can’t comment on the complaint as it’s before the tribunal—but said public health decisions are made based on the best science and evidence available.

“Staff and visitors at clinical sites are provided with medical grade surgical masks that have been tested and validated for performance requirements including filtration efficiency with a minimum 95% filtration rate, particulate filtration efficiency, fluid resistance and pressure differential,” a ministry spokesperson said.

“When a visitor or patient presents to a hospital with their own mask, such as an N95, staff are unable to determine whether it meets safety standards or fits them as needed. Therefore, all patients and visitors are provided with a new medical-grade mask.”