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Most mask mandates in Ontario expired on June 11, 2022, leaving it to individuals and organizations to determine their own mask policies.

Nelligan Law is grateful for the contribution of articling student Emma Lodge in writing this blog post.

While this may be welcome news for some, others continue to have concerns about the ongoing impact of the pandemic. What does this mean for employers, and can they continue to ask employees to mask up while in the office?

In short, workplaces can implement their own workplace rules and policies about wearing masks, so long as they are prepared to accommodate those who may not be able to wear a mask.

The Law:

It is up to employers under the Ontario Health and Safety Act (s. 25(1)(h)) to take all reasonable precautions to protect workers. This means that while an employer can determine the rules and policies that best apply to their organization, they also need to consider their impact on employees.

The Ontario government is clear that “businesses and organizations may implement their own rules and policies related to masking within their settings and Ontarians should respect and follow these rules.” The Ontario Human Rights Commission echoes this language, and explains that requiring people to wear masks for health and safety does not violate the Human Rights code.

Employers should be mindful, however, that they will be required to accommodate employees or others in the workplace who may have medical reasons that prevent them from wearing masks. In those instances, employers have a duty to accommodate the individual unless it causes undue hardship.

In all cases, employers should clearly communicate any changes in workplace policy to their employees. Forward-thinking employers may even wish to consider how to best prepare for the next work disruption, and what health and safety policies they wish to implement in advance.

Other considerations:

Creating a masking requirement in the office, or removing an existing mandate, is within the rights of employers. However, there are several considerations to think about in advance.

Employers should be sure to consider if their new policy is reasonable for their employees and place of work. It is important to consider the type of workplace at hand. For example, a requirement to wear masks for client-facing employees in a coffee shop may be more reasonable than for employees who work in separate offices throughout the day.

The workplace culture may be another aspect to consider for employers. Offices that are largely remote with a few workers in the office have different realities than full offices with many employees in the office each day. On the one hand, enforcing a mask mandate might have the effect of encouraging employees who are hesitant about returning to the office to feel more comfortable in the office. On the other hand, implementing a mask requirement may be seen as an additional barrier to those who are happy to continue working at home.

Further, policies should consider the extent of the mask mandate. Mandates that require all workers in public spaces to wear masks might impact employees in cubicles more than those in offices, which could reinforce inequities in the workplace.

Finally, employers considering implementing a mask mandate should consider offering masks for employees, clients, and those entering the workplace to ensure that cost or access to masks is not an issue.

Conclusion

With the end of provincial mask mandates, it is now up to employers to determine whether to implement mask mandates in individual workplaces. Employers should consider their legal obligations alongside the impacts a mandate may have on their workplace culture.

If you have any questions about creating an ongoing health and safety plan for your workplace, please contact our employment law team.

Author(s)

This content is not intended to provide legal advice or opinion as neither can be given without reference to specific events and situations. © 2021 Nelligan O’Brien Payne LLP.

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