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The Right to Remember

Human Rights | Policies and Procedures | Workplace Safety

Last November workplaces across Canada were simply struggling to wade through a series of crises. Mandatory closures and financial struggles made simply opening each day a struggle for many, while others in essential services battled to simply meet an unprecedented surge in demand. Stress levels ran high, and tempers flared easily, so when Remembrance Day 2020 approached, 8 months into the pandemic, Canadians were ready to pick a fight.

The issue first arose with news about the grocery chain, Whole Foods. The U.S.-based high-end grocery retailer has a workplace policy that did not allow employees to wear anything aside from their mandated uniforms – not even a poppy. They were not the first large employer to maintain such a policy – McDonalds had a similar policy until 2012, when it was reversed for employees who do not handle food.

Nevertheless, the news had many Canadians furious. While Canadians might have a smaller and less active military than our American neighbours, there is still a widespread pride in our history of service, and wearing a poppy is widely seen as a gesture of pride and support. To banish employees from wearing the poppy felt like an assault on Canadian values, especially when the decision came from an American entity.

The most vocal critic of the policy was perhaps Ontario’s Premier, Doug Ford. Ford, who often takes pride in his public support of more traditional values, told reporters at the time “I find it absolutely disgraceful. I find it disgusting.” Even Prime Minister Trudeau declared that the grocery retailer was making a “silly mistake.” and opposition leader Erin O’Toole was quick to brand the Company as ‘Woke Foods.’

From a legal perspective, employment lawyers were quick to chime in. As an employer, Whole Foods was effectively free to enact its own uniform policies, so long as those policies were not discriminatory (i.e., forcing female-bodied employees into overtly sexualized uniforms). Beyond that, though, Whole Foods is entitled to enact their own dress codes, which can banish any exterior symbols pinned to the uniform, including a poppy.

Nevertheless, Premier Ford insisted that he would use his authority to overhaul such a policy and has now done so.

In early November, Ontario’s Minister of Citizenship and Multiculturalism introduced Bill 38, the Remembrance Week Amendment Act, 2021. The Bill amended Ontario’s current Remembrance Week Act by introducing three key points:

  • The Preamble added “Poppies are worn during Remembrance Week as a sign of remembrance and respect.”;
  • The addition that “Every worker in Ontario has the right to wear a poppy in the workplace during Remembrance Week.”; and
  • This will not apply if wearing a poppy “may pose a danger or hazard to the health, safety or welfare of any person.”

The health and safety issues are a key exception. Whole Foods had never announced a reason publicly for their policy (and later reversed course), however if they had acknowledged the issue as a health and safety matter, it likely would not have raised many eyebrows. It is frowned upon to alter poppies in any way, which means that the sharp pins that affix them often fall out with ease – rarely a danger on an overcoat, but certainly more troubling where food handling is concerned. McDonalds similarly solved the issue by relegating poppy displays to employees who do not handle food – allowing the freedom of expression and support while ensuring that health and safety did not become a competing issue.

The legislation also raises the broader question of what messages are acceptable to wear within workplace dress codes. The poppy itself is relatively without controversy – the legislation states its very intention as worn out of remembrance and respect. It is important to remember that the poppy is generally worn as a symbol not in support of war, but of peace.

Employers are, however, fully within their rights to prohibit other political messaging worn on workplace uniforms. While these bans typically apply to ‘rude or offensive slogans,’ they may now be broadened to include any sort of political or partisan messaging that is not endorsed by the employer. Employers can enact policies that determine what an employee wears externally from their footwear right up to their mask and headgear, so long as these policies are not discriminatory and do not violate health and safety regulations. Contrary to popular belief, there is no “freedom of speech” in this context.

This new legislation is a straightforward political response to what had previously been a point of public outcry. As a broader principle though, employers are in control when it comes to dress code policies – just as long as they are not sexist or discriminatory or create a safety risk.

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