Generally speaking, the more decisions are left to their discretion, the more businesses—and their human resource professionals—like it. But the recent elimination of COVID-19-era mask requirements for most Canadian workplaces may have given employers a little more discretion than they are entirely prepared for.
The absence of government mask mandates means that virtually all employers governed by provincial employment laws—comprising about 90 percent of Canada’s workforce—will need to decide whether to continue their own workplace masking rules.
The vaccination rate in Canada is high, and mask-wearing has not been the political hot button there that it has been in the U.S. Nonetheless, some people prefer wearing a mask, while others do not. Attitudes may vary regionally and according to what populations experienced during the pandemic. Ontario, for example, had long-standing mask requirements and suffered major COVID-19 outbreaks.
In his own travels, Michael Richards, an attorney with DLA Piper in Toronto and Vancouver, observed that mask-wearing in and around public places in Ontario and elsewhere in the east has been and continues to be the norm. In the west, he said, people seem to need more reminders.
Earlier this year, nearly three-quarters of Canadians supported provincial mask mandates, but currently only about half do, according to a July study by the nonprofit Angus Reid Institute, based in Vancouver.
Even in discontinuing mask mandates, provincial governments continue to emphasize health and safety and recommend mask usage in various circumstances.
Against that background, what’s an employer to do at this moment when COVID-19 is spiking and a possible surge in cases this fall is on the horizon?
“It all comes back to health and safety,” Richards said. “What is reasonable in the circumstances to protect the health and safety of workers?”
Richards recommended that employers consider their own circumstances. “It depends on what the workplace looks like,” he said. Is it an office where employees have their own space, or is it an assembly line? Do employees have the option to work at home? Are workers engaging with the public? Is the space well-ventilated or not? What is necessary to gain access to the physical workspace—proof of vaccination? Daily screenings for symptoms?
In addition to weighing all those factors, employers need to assess how an outbreak would affect their workforce. A handful of cases could cause a small business to lose a large percentage of its workforce for several days. If employees have no option to work from home, “an outbreak could have a material impact on your business.”
Optional, Recommended or Required?
Once an employer has determined the need for a mask policy, the question becomes, how strict? Richards’ impression is that most employers prefer a “masks recommended” approach. “It’s the path of least resistance, and it saves them from having to police a mandatory rule.” Richards mentioned one gym that prohibits masking for workers and customers alike. “It makes news because it’s an outlier,” he said.
For an employer that does impose a strict mask requirement, “the biggest risk is that people may choose to leave,” Richards said. There is not much legal risk, unless there is a need to accommodate a disability or medical condition, he said.
A mask objector could bring a claim for constructive discharge—meaning that conditions were so intolerable the employee was forced to quit—but it’s a hard burden to meet, and the individual would have to demonstrate that mask-wearing was a material issue.
But what about the person who just keeps breaking the rule? “You have to start disciplining them, and possibly ultimately terminate them for cause—insubordination.” In the absence of a government mandate, an employee might successfully argue that a strict mask requirement was not a reasonable rule—at least not one that justifies termination. In the case of a scofflaw, the employer might simply decide “this isn’t the kind of employee we want, and just ‘package’ them out,” Richards said.
Another strategy for dealing with noncompliant employees is to place them on unpaid leave for as long as they refuse to obey the rule. Some employers used this approach instead of termination for cause when employees refused to vaccinate contrary to a policy. In early July, this tack was upheld in an Alberta mask case (Benke v. Loblaw Companies Limited). The court found that the employee was not constructively discharged because the employee had voluntarily decided not to comply with the policy and that the employer’s action was reasonable.
When the employer has no rule, or a more permissive policy, an employee whose medical condition or disability makes it risky for them to be near an unmasked person may need an accommodation.
As in the U.S., “Many people have decided that, either having had COVID or receiving the vaccine, no further precautions are needed. However, there are others who for many reasons still choose to wear masks and clean their hands frequently,” said Katherine Dudley Helms, an attorney with Ogletree Deakins in Columbia, S.C.
Stay the Course?
Some observers have suggested leaving a mask requirement in place as a hedge against renewed government mandates—better to leave a rule in place than be whipsawed by government policy changes. Acknowledging that some employers are taking a wait-and-see approach, Richards sees no appetite in the provinces for renewed mandates. “I don’t think that’s going to happen unless things get really bad,” he said.
Employers that do adopt or continue their own mask rules should communicate the requirements and the reasons for them clearly and consistently. Government-required posters regarding masking may be coming down, but if the employer continues to require masking, it should not “leave space open to rumor,” he said.
Margaret M. Clark, J.D., SHRM-SCP, is a freelance writer in Arlington, Va.