Mask and COVID-19 screening requirements creating employment law issues

Social media feeds are rife with videos of angry and indignant – mostly – retail customers melting down over face-mask mandates. Employment lawyers are seeing similar disputes play out between employees and employers, after the Government of Ontario announced amended regulations creating mask and screening requirements, says Adrian Miedema, partner in the Toronto Employment group of Dentons Canada LLP.

The screening and mask directives were contained within Ontario Regulation 364/20, made under Reopening Ontario (A Flexible Response to COVID-19) Act, 2020.

“We've been getting a lot of questions about that… About people refusing to wear masks in the workplace, which, unfortunately, has been coming up a fair bit already,” says Miedema, who advises public and private sector employers about human rights, health and safety and other employment issues.

In effect as of Oct. 3, Section 2(4) of the Regulation requires business operators to ensure all patrons inside the business – or in a vehicle operating as part of the business – use a mask to cover their mouth, nose and chin. There are a number of exemptions, including those with a medical condition inhibiting their ability to wear a mask and those unable to put on or remove a mask without another person’s assistance. Customers are also allowed to be mask-less while engaging in an athletic or fitness activity and while eating or drinking.

If employees are working in an area not open to the public, their employer does not have to require them to wear a mask, so long as they maintain social distancing, says Miedema. But if social distancing is impractical, employers must still bear in mind their obligations under the Occupational Health and Safety Act to maintain a safe workplace, he says.

Employees with certain health conditions may qualify for the exemption, so employers are asking Miedema how they are to deal with a situation where an exempted person must interact with others without a mask, while others have been mandated to wear one. A further complication is that the regulation states it is not necessary for a person claiming a medical exemption to present evidence they are entitled to the exemption, says Miedema.

“This is where it gets a little bit tricky,” he says. “Because the regulation doesn't say to an employee: ‘If you have a medical condition, you have a right to be present on your employment premises.’ But it says, that if you have a medical condition, the employer doesn't have a legal obligation to require you to wear a mask.”

That means, if an employee has a medical condition preventing them from wearing a mask, the employer still must assess the safety of this person working in the workplace, says Miedema.

Adding to the complexity is that, under the Human Rights Code, employers also must attempt to accommodate an employee’s disabilities.

“You can't just say, ‘You've got a medical condition, we're not going to let you in.’ You have to make an attempt to accommodate. But ultimately, the employer may say, ‘We can't accommodate, especially given the COVID numbers lately. We can't accommodate people working at our office without a mask,” he says. “So if you can't wear a mask, for whatever reason, you're not going to be able to come into the office. That's a decision that some employers are going to have to make.”

“I'm trying to give employers a little bit of confidence that they can still make decisions for the safety of their employees, even with this masking requirement.”

Employers are also grappling with new screening requirements, says Miedema. Under section 2(3), which went into effect Sept. 26, a business operator must operate “in compliance with the advice, recommendations and instructions issued by the Office of the Chief Medical Officer of Health on screening individuals.”

“That, obviously, is a big obligation and a big job to make sure that everybody is screened,” he says.

“What a lot of companies have been doing is setting up an app or an online-based system where employees have to self-screen before they come into the office or the workplace. And if they don't complete the self-screen, and they don't check ‘no’ to all the questions, they're not allowed into the workplace. So it takes some administration and some logistics.”