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Howard Levitt: Employers Can Enforce Masking Policies Even After Provincial Mandates are Gone

posted 2 years ago

After much anticipation, the Ford government ended its mask mandate on March 21. For many, this caused them to breathe a sigh of relief, both literally and figuratively.

But make no mistake, that does not mean that masks are a thing of the past. We have had it drilled into us for the past two years that masks are necessary to protect our health. They have become an ubiquitous part of our everyday lives. Many don’t leave their homes without one. Some have even invested in extensive mask wardrobes.

The idea of walking into a room filled with unmasked people renders many uncomfortable, at least for a little while. The social norms around mask-wearing will take time to wear off.

If there is another COVID wave or variant, expect masks to make a popular comeback.

With the exception of health-care workers, the announcement alleviated some businesses and organizations from having to enforce the use of a mask. Employees who work in public transit, shelters, long-term care homes, hospitals, medical clinics and jails still have to continue wearing masks until April 27.

But though the mandate has lifted, many employers can and will choose to continue to enforce a mask wearing policy.

Employers who wish to enforce, or continue to enforce, masking requirements in the workplace should either update or create safety policies. These policies should state that all employees must wear face coverings in common areas, and also specify situations in which some employees are exempt. For these policies to become effective, the employer must communicate the policy to its employees and customers and post it at all entrances and areas frequented by employees.

Non-compliance with your employer’s mask policy might still result in dismissal from your employment. If an employee fails to wear a mask contrary to an employer’s safety policies, the employer can warn, discipline, or terminate an employee for refusing to wear a mask.

As always, employers have an obligation to accommodate employees on human rights grounds. If an employee is unable to wear a mask due to a disability or medical condition, an employer must accommodate them, which might involve permitting the use of a face shield or being placed in an area where physical distancing is easier.

Individual circumstances must be handled on a case-by-case basis. If none of these options are feasible, the employer will have to consider whether the worker’s employment can continue at all. But such a termination would then be without cause if the employee is medically unable to wear a mask and cannot be accommodated.

While many of us are ready for COVID-19 to be over and to do away with all COVID related mandates, there are some that may persist at the discretion of employers across this country. Employees need to ensure they are aware of any continuing mandates in their workplaces (and possible repercussions if those policies are not complied with), and employers need to make decisions on whether to update and continue their current policies.

But employees beware: unmasking is not an absolute right in Canadian workplaces.


Howard Levitt is senior partner of Levitt Sheikh, employment and labour lawyers with offices in Toronto and Hamilton. He practices employment law in eight provinces. He is the author of six books including the Law of Dismissal in Canada. Tara Seosankar is a partner at Levitt Sheikh.

THIS ARTICLE ORIGINALLY APPEARED HERE: https://financialpost.com/fp-work/howard-levitt-employers-can-enforce-masking-policies-even-after-provincial-mandates-are-gone


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