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Date:
2020.09.03

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THE EMPLOYERS' EDGE

Masking the Problem: Perspectives on Employee Refusal to Wear a Mask at Work

Practice Areas: Human Resources Support

Employers have a legal obligation under the Occupational Health and Safety Act and the common law to create and maintain a safe work environment. To meet this obligation in the new world of COVID-19 many employers will need to institute policies mandating masks for staff, customers, and other visitors. If maintaining a safe work environment is achieved through mandating masks, then employees ought to comply with those policies.

It is generally recommended that if employers require or encourage staff to wear masks in the workplace, the employer should draft a clear policy, supply masks, and train staff on how to properly use a non-medical mask.

Employers need to comply with By-laws

In some cities, like Ottawa and Toronto, employers and service providers must meet certain public health conditions which include mandatory face covering of the mouth, nose and chin for members of the public and employees in indoor public spaces.

In workplaces where employees are required to wear masks pursuant to any by-law, the employer must:

  • Develop a mask policy;
  • Identify who is exempt from the policy;
  • Train staff on the policy;
  • Communicate the mask policy to staff and customers;
  • Require that all staff, customers or visitors wear a mask indoors, with some exceptions.

In Toronto for example, people exempted from wearing a mask include:

  • People in schools and child care facilities;
  • Private transportation and public transportation;
  • Hospitals, health facilities, and the offices of regulated health professionals;
  • Children under the age of two;
  • Persons with medical conditions inhibiting their ability to wear a face covering;
  • persons unable to put a face covering on or to take a face covering off without assistance.

But what happens if an employee refuses to wear a mask?

The Employee Claims to have a Disability

Some employees may refuse masks because they claim to have a medical condition that prevents them from wearing a mask. If an employee refuses to wear a mask due to a disability, this is treated as any other request for accommodation. The employer should seek medical documentation supporting this exemption, but also to determine any other options to reasonably accommodate the employee.  Perhaps the employee can wear a different kind of mask, or alternative face covering that would comply with public health guidelines.  If not, perhaps the employee can work from home, or in an area of the workplace where they can maintain social distancing at all times.  

If an employee cannot under any circumstances comply with a masking policy, the employer will have to determine whether it is possible for the employee to continue in employment at all, without causing undue hardship on the employer.

Employers must do their best to investigate appropriate accommodations and remember that each case requires specific attention and a tailored solution because employees are entitled to reasonable accommodation up to the point of undue hardship.

The Employee Does Not Like Masks, or is “Anti-Mask”

Some employees may refuse masks because they don’t like them or don’t believe in them. Employers can make policies that mandate masks if they believe it is necessary for health and safety purposes. Employees working under these policies cannot refuse to wear a mask without a legitimate reason related to their health and safety or a ground protected under the Human Rights Code that would entitle them to reasonable accommodation up to the point of undue hardship.

If your employee is refusing to wear a mask despite your workplace policies and without legitimate reason, this may create an unsafe work environment for other employees, which in turn places the employer at risk of violating its legal obligations to maintain a hazard-free workplace under the Occupational Health and Safety Act.  In those circumstances, the employee’s insubordination can warrant an appropriate disciplinary response.

Consequences of Non-Compliance with Mask Requirements for Employers

In Toronto, employers may face a fine of up to $1,000 for non-compliance with by-laws. Ottawa initially relied on businesses to act in good faith, but passed a by-law on July 15, 2020 that allows the imposition of a fine up to $500.

COVID-19 has created a new legal landscape that has not fully formed, but fundamental legal principles can help predict some further consequences for employers who disobey municipal by-laws and public health guidelines by not enforcing mask policies.  For example:

  • Prosecution under the Occupational Health and Safety Act for failing to take all reasonable precautions in the circumstances for the protection of a worker;
  • WSIB premium increases when employees contract COVID-19 at work and have lost time illnesses;
  • Civil liability to employees if the employer is WSIB exempt, or to customers and other visitors due to the employer’s negligence in failing or refusing to enforce a masking policy;
  • Claims for constructive dismissal from employees whose complaints of non-compliance with health and safety guidelines creates a “toxic” work environment and force them to quit.

The CCP team can provide employers experiencing difficulty navigating new workplace safety policies with expert legal advice on their obligations and ways to minimize liability. Please contact one of our lawyers who can assist with all your workplace safety concerns.

Click HERE to access CCPartners’ “Lawyers for Employers” podcasts on important workplace issues and developments in labour and employment law.

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