Municipalities across Ontario are enacting new bylaws regarding the use of masks in public locations. However, these new rules provide little guidance for business owners on how to regulate and enforce mask usage in their establishments. Furthermore, there are exemptions. But what is an employer to do if their employees feel unsafe when customers refuse to wear masks? How do they ensure a safe workplace?
This issue is exacerbated by the fact that asking someone if they are exempt from the requirements or requiring proof of the same may trigger a human rights complaint. Nevertheless, employers can minimize liability by being proactive and staying aware of competing rights at play.
In order to comply with the bylaws, as well as their obligation to provide a safe work environment, employers should draft and implement mask policies. Employees should receive thorough training on how to follow and enforce these policies so as to be prepared to handle issues as they arise. Many employees are worried about what to do if someone refuses to wear a mask or follow physical distancing measures. The policies and procedures must be drafted to suit the specific conditions of the business in question.
A question that is often asked is: what can employees do if customers refuse to wear masks? If feasible, one option is for a business to provide masks for customers who do not bring their own. Another option is to have services available during off-peak hours for those who cannot wear masks. For example, a mask-free hour can be dedicated in the morning for seniors or other vulnerable groups. It is still imperative that physical distancing is maintained indoors and is clearly communicated to both employees and customers. Employers may also offer curbside pickup or online shopping as a safe alternative to entering an establishment.
Training employees on how to safely communicate with customers is the key here. If a customer refuses to wear a mask, even after they are offered one, it may be better to assume they are exempt, offer accommodation (i.e. alternatives), and determine other ways to ensure safety. Any concerns should be thoroughly documented by employees and kept on file in case of a discrimination claim. Open communication channels should always be available to employees to allow them to voice their concerns and guide policy implementation. Depending on the business, employers may consider having a designated employee, such as a supervisor or health and safety representative, responsible for handling such concerns.
Employers must be mindful of their duty to accommodate employees up to the point of undue hardship. For example, an employee may be worried about their health and safety if they are immunocompromised and asked to come into direct contact with customers. Employees should be able to request accommodation without fear of discipline or reprisal. The importance of having an accommodation policy and procedure in place cannot be overstated. You can read more about accommodation and best practices here.
Employers must also remember the competing rights at play here: on the one hand, employees have the right to a safe work environment, and on the other, customers have the right to be free from discrimination. For example, if a customer refuses to wear a mask, asking them for proof of an exemption or refusing to serve them may trigger a human rights complaint (e.g. the individual may be exempt due to disability). However, an employee has the right to refuse to work in an unsafe environment and, due to safety concerns, might refuse to serve someone who is not wearing a mask.
What should an employer do under such circumstances? If an employee reports a concern about an unsafe workplace, the employer is required to investigate the situation and advise the employee as to whether the safety risk has been resolved or not. If the employee continues to believe there is a safety concern, the Ministry of Labour can be asked to investigate. Recently, several provinces, including Ontario, have increased the resources available to respond to safety concerns as a result of the COVID-19 pandemic.
Workers should be mindful of the fact that the right to refuse unsafe work is intended to protect them when the workplace is unsafe. There must be reasonable and legitimate grounds for the employee to believe there is a safety risk in the workplace. The number of work refusals upheld has been minuscule since the start of the pandemic, as there must be a significant and objective reason to believe that a workplace presents a safety risk.
Employers may be concerned about the competing rights of employees and customers as Ontario moves into Stage 3 of its pandemic response and businesses slowly begin to open their doors to the public. Employers would be wise to implement policies and procedures that comply with the bylaws and provide the necessary training to staff to ensure a safe working environment.
If you are an employer struggling to navigate the new mask bylaws, we can work with you to develop customized policies and procedures that address the specific needs of your organization, and then provide the training and support needed to enforce them.
If you have any concerns about enforcing the new rules in your workplace, feel free to contact us to learn more about your options.