How should an employer approach accommodating an employee who can’t wear a mask for medical reasons in a factory-type workplace with many people around?
Question: How should an employer approach accommodating an employee whose can’t wear a mask for medical reasons in a factory-type workplace with many people around?
Answer: COVID-19 is requiring employers to get creative with ensuring the health and safety of their employees, especially those with pre-existing conditions that require additional accommodation in light of this dangerous virus.
Employers are required to ensure the health and safety of their employees, while balancing their obligations to accommodate those employees with conditions protected under human rights legislation.
When it comes to the requirement of employees wearing a mask, the employer must ensure this condition is indeed a bona fide occupational requirement (BFOR), meaning it is necessary to accomplish a legitimate work-related purpose or goal. In circumstances where physical distancing is not possible, such as in a factory, the requirement to wear a mask likely amounts to a BFOR.
However, when a workplace requirement amounts to a BFOR, it does not dissolve an employer’s obligation to accommodate employees to the point of undue hardship. If an employee has provided medical documentation indicating that they are unable to wear a mask, then the employer is obligated to work with the employee to develop reasonable accommodation — examples of which may include wearing a face shield instead of a mask, decreasing length of shifts and/or allowing for more breaks, allowing the employee to work remotely or placing the employee in an alternate position where they are isolated from other employees.
If the workplace does not allow for the employee to be accommodated without the employer suffering undue hardship, then the employer is required to consent to the employee taking an unpaid medical leave of absence.
It is important when faced with these accommodation issues that the employer undertake an assessment of their workplace to determine possible accommodation options. While employers are not required to create new positions, impact other positions or accommodate to the point of undue hardship, they are required to take meaningful steps to accommodate their employees.
Tim Mitchell practises management-side labour and employment law at McLennan Ross in Calgary. He can be reached at (403) 303-1791 or [email protected].
