Back to the Office, Back to Reality – Part 2

The Masked Worker: What are the rules governing mask mandates in the workplace?

By of Merovitz Potechin LLP on Tuesday April 5, 2022.

In Part 1 of our Back to the Office series, we discussed the rights and responsibilities of employees and employers surrounding a return to in-person work. In Part 2, we will examine the rules governing mask mandates in the workplace.

Ontario’s Removal of the Mandatory Mask Requirement

On Monday, March 21, 2022, the Government of Ontario lifted the mandatory masking requirement for many indoor settings (including most workplaces). 

As of now, the government plans to remove all mandatory COVID-19 safety measures in all workplaces by June 11, 2022.  This includes long-term care and retirement homes, heath-care settings, and other settings where vulnerable populations are serviced.

Although COVID-19 hospitalizations have been trending upwards, as have daily case counts, Health Minister Christine Elliot recently stated that the government is unlikely to reinstate widespread mask mandates.

Businesses will, however, remain able to institute their own requirements to keep their customers and workers safe.  These might include masking requirements, social distancing, and mandatory vaccination policies.

Ontario’s Chief Medical Officer of Health, Dr. Kieran Moore, has indicated that he will continue to wear a mask in crowded indoor settings.  While masks are no longer required in Ontario schools, they remain strongly encouraged by most school boards.  Locally, while the City of Ottawa has lifted its mask mandate, it continues to highly recommend mask use when indoors.

Employers in Ontario continue to have an ongoing duty to take reasonable precautions to protect their workers pursuant to the Occupational Health and Safety Act. 

This has left both employees and employers confused. 

Can I choose to wear a mask?

Yes.  In fact, as noted above, public health officials encourage you to do so. 

Can my employer force me to wear a mask?

Yes.  Given the comments from public health officials, it is open to employers to determine that masking is a reasonable precaution to protect their workers in most (if not all) settings, subject to the duty to accommodate under the Human Rights Code.

Of course, this may change as the situation evolves, as do public health guidelines.  Factors to consider might include the nature of the workplace, the ability to social distance, and COVID-19 case counts.  For example, mandatory masking might be a more reasonable precaution where workers share a vehicle as opposed to sharing a large indoor space.

What should I do if my employer does not mandate masking?

Whether a masking policy is required may depend on the nature of the workplace.  If your personal circumstances put you at higher risk for contracting COVID-19, this is an issue that you should raise with your employer to see if other accommodations are applicable (i.e. social distancing, telecommuting, etc.).

Once Ontario reaches a point where protection such as masking is no longer mandated at all, even in settings where a vulnerable population is being serviced, it will likely be very difficult to argue that a mandatory masking policy is required to protect employees.

What should employers watch for?

Be mindful of the potential for conflict between those in favour of continued masking, and those opposed.  Businesses could face frustration from customers who do not wish to wear a mask.  There is also the potential for workplace conflict between employees.  We encourage employers to be clear and consistent with their expectations, and to remind employees of any applicable workplace violence and harassment policies.

Should workplaces also have mandatory vaccination policies?

Read Part 3 of our series were we discuss mandatory vaccination policies in the workplace.

If you have any questions about rules governing mask mandates in the workplace, contact the Employment Law Lawyers at Merovitz Potechin LLP.