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Employers Can Enforce Masking Policies Even After Provincial Mandates Are Gone

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

With the exception of healthcare workers, the announcement of an end of masking mandates 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 may want to continue wearing masks, especially in the case of infectious illness in the workplace.

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.

By Howard Levitt and Tara Seosankar 

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.