What Happens After Mask Mandates End
You may have recently started seeing mouths and chins once again when you go out in public. On March 21, 2022, Ontario ended the mask mandate for the majority of Ontario businesses and public spaces, with only a limited number of spaces (hospitals, long term care homes, public transit) still requiring mask usage for another few weeks.
While the news has been welcomed by some Ontarians, it has also made others nervous. The past two years have made many of us nervous about contamination from public spaces and gatherings, and many individuals may continue to voluntarily wear a mask in public for weeks or even months to come.
Yet the change also leaves employers with a decision to make. Should they continue to mandate masks for employees? Should they require them for clients and customers as well? What happens if someone refuses to comply?
We’ve received a number of questions on this topic and wanted to offer some helpful information:
Do we need to keep wearing masks at work?
No, the government has lifted the mask mandate, and so masks are no longer required in workplaces except for a few narrow categories, and the government has announced that all restrictions are expected to be lifted after April.
Note that this is the most current information to date, and like much of the trajectory of the pandemic, may change upon short notice. We will inform readers of any changes in legislation that affect mask mandates in the workplace.
Can we mandate that everyone in our workplace wear masks?
The short answer is yes – employers can require customers and employees to continue wearing masks.
If you are operating a private business, you effectively make the rules. That means that you can maintain similar conditions to what were in place just a few weeks ago, including mask mandates and proof of vaccinations. As a reminder, any policy that you implement needs to include exceptions for individuals who are medically exempt from either activity.
As for employees, as a private employer you are allowed to set your own rules and policies, which can include continuing the mask mandate in the workplace. Some of the United States’ most prominent employers such as Walmart, Amazon, Costco, Target, and Home Depot have all maintained a mandated mask policy after they were no longer required by government regulations.
In Ontario some smaller businesses have also made the decision to continue enforcing such rules, although the decision may not be popular amongst some employees. Yet employers ultimately have a responsibility under the Occupational Health and Safety Act to keep employees healthy and safe, and mask requirements may be a way to do that for at least a short time.
Employers can ultimately decide what requirements they will put in place, and for how long. This may take the form of a new workplace policy, or it could be worked into an existing policy such as a dress code. Again, it is crucial that any such policy, similar to the one mentioned above, includes exemptions for employees who are unable to participate and protected under human rights legislation.
What if one of our employees objects to wearing a mask?
This is now an interesting question after the government has lifted their mandate. Previously, so long as the objection was not based on a medically-valid exemption, this individual would have been violating both an employer directive and public health guidelines.
Now that the public health requirements have lifted, an employee’s refusal to comply with a mask policy in the workplace is akin to refusal to comply with any other workplace policy, such as a social media policy or an attendance policy. This means that you can discipline employees for infractions of the policy, so long as the stages of discipline are clearly outlined for employees.
The ultimate question is whether an employee can be terminated for refusal to wear a mask. In Ontario, most any employee can be terminated at any time for any reason in a without cause termination, so long as they are provided with the proper pay in lieu of notice. In other words, you can terminate an employee for violating this policy, but there may be an associated cost. It is unlikely that an attempt to terminate such an employee with cause would be successful, especially if the policy is seen as superfluous in light of changing public health guidance.
What if an employee wants to keep wearing a mask?
If an employee wants to keep wearing a mask, at least for the time being, they should be allowed to do so as long as it does not interfere with their job requirements (and this would be unlikely). Many employees may be immunocompromised or close to family who are, and even if they have not disclosed this, it might leave them with added concern while dealing with unmasked clients.
Should COVID-19 vanish completely and an employee still wishes to keep wearing a mask, that will be the employer’s decision as to how to handle it. Employers need to be sensitive to an employee’s concerns about the health of others, but should also be attuned to what may actually be a mental health issue that’s arisen from the pandemic. Employers must not only be careful to avoid discriminating, but they should also be attuned to what may be a mental health issue, and can offer support and services through extended benefits as required.
There are a whole host of issues relating to what may be a return to ‘normal,’ from the removal of mask mandates to the unwinding of vaccination policies and so on. We are all learning to navigate a changed world, and employers who are simply trying to do the right thing are often confused as to how to respond to challenging situations.
We are here to help provide guidance and support at every turn. Our job is to ensure that our clients are not inadvertently doing the ‘wrong’ thing, despite having the best of intentions, which can make a complicated situation even trickier. We work with our clients to provide straightforward, common-sense approaches that help keep workplaces healthy, safe, and productive. Contact us today to discuss further.