06 Mar As an employer, can I re-issue mask mandates in the workplace?
The COVID-19 mandates issued to protect communities in Ontario are constantly changing. As we have seen over the past two years, issuing health and safety mandates have become more rigorous as the number of cases and deaths have increased. As the world slowly re-opened, mask wearing was a necessary condition to re-enter the office. As cases and deaths have now decreased, and people consider the pandemic to be waning, fewer people feel inclined to wear a mask.
As of March 2022, mask mandates for workplaces were lifted by the provincial government and by June 11, 2022, the mask mandates for public spaces like the train, subway, or even some hospitals, were lifted. However, employers for private companies still have the authority to have their own policies and continue mandates to protect their workers from the COVID-19 virus.
If an employer believes mask-wearing should continue because of the average age at the workplace, a high number of at-risk employees, general opinions on the virus, etc.; they can continue to mandate these COVID-19 safeguards. The Occupational Health and Safety Act (OHSA) instructs that the employer must do everything they can to keep their employees as safe as possible. If the employer believes that maintaining or re-issuing mask mandates will help keep their employees safe, then they are encouraged to do so.
What if some employees refuse to wear a mask?
It is not necessary for employees to wear masks since most public spaces have lifted these rules, however, this becomes more difficult if their employer still has a mask policy at their workplace. A refusal to abide by the employers’ mask mandates could lead to termination of their employment.
An employee could refuse to wear a mask because of their own opinions about the spread of COVID-19, due to religious reasons, or due to medical conditions. In situations where the employee refuses to wear a mask because of either a medical condition or religious belief, the Human Rights Code outlines that the employer has a duty to accommodate. In these cases, the employer could allow the employee to work remotely, provide more frequent COVID-19 testing, offer an individual office for this employee, etc. If an employee decides not to follow the mask policy because of an individual opinion, it is not adequate grounds for the employer to have the legal responsibility to accommodate.
Commonly, when employees refuse to follow COVID-19 mandates without an acceptable justification, they wonder whether their employer has the grounds to terminate their employment. According to the Employment Standards Act, 2000 (ESA), an employer can terminate an employee without cause. The employer does not need to have or provide a reason for why they have decided to terminate their former employee. If the employer believes the employee’s defiance is considerable enough to warrant termination, it is justifiable for the employer to pursue this decision. However, it is legally unacceptable to proceed with termination if the employer had a duty to accommodate for this employee.
If you are an employer who wants to create health and safety policies for the workplace or needs guidance on how to best terminate a defiant employee, please contact KCY at LAW by filling in an online consultation request or contact us by phone at 905-639-0999 to book your consultation today.