Canada: Can An Employer Still Enforce A Mandatory Masking Policy?

Ontario's public health laws in response to COVID-19 continue to evolve. DSF has previously discussed the enforceability of mandatory vaccination policies in the workplace. This blog addresses the enforceability of mandatory masking policies introduced by employers now that Ontario law no longer requires masking in most settings.

Evolution of the Ontario Mask Mandate

On June 11, 2022, the Ontario mandatory masking requirement was lifted in public transit¹ and most health care settings. The province's masking mandate has been gradually adjusted since the onset of the COVID-19 pandemic, becoming more relaxed as the volume of infections in Ontario has decreased. The significant changes to the mandate enacted on June 11 were perceived by many as the end of the mask mandate. However, individuals are still required to wear a mask in certain circumstances, such as in long-term care and retirement homes. Hospitals, while no longer obligated by the province to require masking, may nonetheless elect to require masks to be worn in their facilities. Indeed, many hospitals, such as Toronto's University Health Network, have continued to require masking.

Masking Policies in the Workplace

Similar to hospitals, although not mandatory, private businesses may choose to have a masking policy in effect. Under the Occupational Health and Safety Act ("OHSA"), employers are required to take every precaution reasonable in the circumstances for the protection of a worker. This includes protection from "occupational illnesses", such as COVID-19. To ensure compliance with the OHSA, it continues to be prudent for employers to have a masking policy. One possibility would be to require employees to wear a mask when walking through the common areas of the workplace but be permitted to remove their masks when working alone in their office.

Individuals who wish to continue masking are permitted to do so, even if their employer does not require it. Employees who refuse to comply with their employer's masking policy may be subjected to discipline.

Is Refusal to Abide by an Employer's Masking Policy Just Cause for Termination?

Employers may terminate an employee at any time without cause, as long as they provide the terminated employee with all payments and entitlements in accordance with the Employment Standards Act, 2000, their employment contract and the common law.

If an employee can show that they cannot wear a mask for medical or religious reasons, they would be entitled to accommodation under the Ontario Human Rights Code or the Accessibility for Ontarians with Disabilities Act. In these instances, employers would have a duty to accommodate the employee up to the point of undue hardship, with regard to cost and health and safety issues. However, to date, qualifying for such as accommodation has proved to be extremely difficult and this is likely to continue to be the case.

In Beaudin v Zale Canada Co. o/a Peoples Jewellers, 2021 AHRC 155, the Human Rights Tribunal of Alberta ("HRTA") determined that a store's choice to refuse service to a customer who refused to comply with its masking policy, even though at the time there was no public health requirement to wear a mask, did not amount to discrimination. In this instance, it was not disputed that the patron had a disability which prevented him from wearing a mask, but because the store offered alternatives such as shopping online (with free delivery) and curbside pick-up, and since the employer had good faith and legitimate health and safety reasons for introducing the policy, the HRTA dismissed the complaint.

There are other cases in which human rights tribunals have decided against individuals who refused to follow the mask policies of private businesses.² In each of these cases, the tribunals concluded that the complainant was not entitled to an exemption from wearing a mask under the applicable human rights legislation.

Employers may consider providing alternatives, such as permitting employees to work remotely to avoid human rights complaints about the enforcement of a masking policy. However, as the British Columbia Human Rights Tribunal concluded in The Customer v The Store, 2021 BCHRT 39, "[t]he Code does not protect people who refuse to wear a mask as a matter of personal preference".³

The above cases suggest that an employer will likely have a strong case if they choose to terminate an employee for cause and wilful misconduct for failure to comply with a masking policy. However, if COVID-19 becomes less of a public health and workplace safety concern and case counts decrease, it will become more difficult for an employer to establish just cause and wilful misconduct when terminating an employee for failure to comply with a masking policy. On the other hand, if a new variant and wave of the virus emerge and case counts increase, the employer's case for cause and wilful misconduct, if an employee does not comply with its masking policy, will become strong again.

Ultimately, masking disputes in the workplace will depend on the facts and circumstances of each case and whether the masking policy is reasonable in the circumstances.

Footnotes

1 With the exception of the TTC's "Wheel-Trans" Service.

2 See also: Szeles v Costco Wholesale Canada Ltd., 2021 AHRC 154; Rael v Cartwright Jewelers and another, 2021 BCHRT 106; Coelho v Lululemon Athletica Canada Inc., 2021 BCHRT 156; Ratchford v Creatures Pet Store, 2021 BCHRT 157.

3 The Customer v The Store, 2021 BCHRT 39 at para 14.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.