'The employer could have reasonably argued that there wasn't an unlimited amount of flexibility at their disposal'
“It’s reasonable for an employer to insist that employees adhere to public health recommendations in the workplace, because if they don't, the employer can be exposed to an occupational health and safety complaint and investigation.”
So says Joseph Oppenheim, a labour and employment lawyer at Carbert Waite in Calgary, after the Alberta Human Rights Tribunal found no discrimination when an employer didn’t accommodate a worker’s desire to not follow a medical masking requirement during the pandemic.
Heartland Constructors is a supplier of skilled labour in the maintenance and turnaround sector, providing superintendents, foremen, and tradespeople for clients. In September 2021, Heartland was hired to perform maintenance and turnaround work for a third-party client.
Heartland hired the worker on Sept. 8 as a temporary labourer for the project, which was to take place on the third-party client’s site. Her employment letter set out that she was hired specifically for the duration of the project.
One week later, on Sept. 15, Heartland advised its employees that they should wear medical-grade masks at work, as required by the site owner, due to concerns over COVID-19 infections. The third-party client’s policy was introduced because COVID-19 cases had increased at the worksite and public health information indicated that masks would help prevent the spread of the virus.
Mask caused migraines: worker
The worker complied, but on Sept. 18 she developed a migraine headache that she believed was triggered by wearing a medical mask. She had to leave work early and was off work for her next two scheduled days.
According to the worker, she requested accommodation by wearing her own non-medical mask at work. She said that she was sensitive to carbon dioxide and wearing masks triggered migraines, but she didn’t provide any medical information and she admitted that she didn’t see a doctor about her issue. Heartland denied the request, suggesting that she wear her own mask underneath the medical mask or twist the mask’s strings to allow better oxygen flow.
The worker disagreed with the company’s suggested solution and said that the company would have to either fire her for being absent from work or lay her off. On Oct. 4, Heartland laid off the worker and several other temporary employees because the project was nearing completion. Heartland laid off 97 temporary employees in October 2021, with 27 of them labourers like the worker.
Heartland acted appropriately in asking for medical information to support the worker’s request and to suggest solutions even when no information was forthcoming, says Oppenheim.
“The employer was right to stand its ground in all the circumstances and then grant the [worker’s] demand that she be laid off,” he says. “The Human Rights Commission noted that there were public health recommendations in place to deal with the COVID 19 pandemic at that time and, objectively, it was reasonable for the third-party owner to insist that everybody wear a mask at the worksite.”
Worker claimed disability discrimination
The worker made a human rights complaint alleging that Heartland discriminated against her in the area of employment based on physical disability by not allowing her request to not wear a medical mask at work. She also obtained a doctor’s note dated Oct. 18 describing her condition.
The Director of the Alberta Human Rights Commission reviewed the complaint and determined that the complaint should be dismissed because the worker didn’t provide medical information supporting her accommodation request and Heartland offer her accommodation anyway, which the worker declined.
The worker requested a review of the Director’s decision before the tribunal, maintaining that Heartland didn’t accommodate her disability and that the medical mask policy forced her to ask for a layoff.
The tribunal agreed with the Director that the worker didn’t support her request for accommodation with any medical information and the worker hadn’t seen a doctor at the time. Although the worker ended up getting a doctor’s note, this came two weeks after she was laid off, which was too late, the tribunal said.
Despite the fact that the worker didn’t provide medical information, Heartland tried to find a solution with its suggestion that the worker wear her own mask under the medical mask or twist the strings of the mask, but the worker didn’t want to do it, said the tribunal.
Layoff not related to accommodation request
The tribunal also found that the evidence supported that the worker’s layoff was expected and not related to her accommodation request. She was a temporary employee for the project, which was coming to an end, and Heartland laid off several other employees for the same reason, the tribunal said, adding that the worker asked to be laid off anyway because she wouldn’t wear a medical mask at work.
In addition, the collective agreement between Heartland and the construction workers’ union expressly provided that the company was to lay off temporary employees first when it had to reduce the workforce at a specific worksite.
The tribunal also noted that the masking requirement was imposed by the third-party owner of the worksite, so it was unlikely that Heartland could grant her requested accommodation even if it wanted to allow her to wear her own mask only.
The fact that the masking requirement came from the third-party site owner didn’t absolve Heartland of a duty to accommodate, according to Oppenheim.
“It's a factor that goes into the mix in that the employer could have reasonably argued that there wasn’t an unlimited amount of flexibility at their disposal - they would not have been able to unilaterally decide on accommodation,” he says. “But that doesn't mean that they were relieved of their obligation to seek out, or to try to meet an employee halfway, an accommodation.
“There might have been an obligation to try to work with the employee, and that might mean going up the chain and speaking to the owner and see what can be done.”
No evidence of discrimination
The tribunal found that the worker did not provide any information that supported her claim of discrimination based on physical disability, while Heartland had sufficient evidence to prove that it didn’t breach its duty to accommodate and laid off the worker for reasons unrelated to her disability.
The tribunal upheld the Director’s dismissal of the worker’s discrimination complaint.
The lack of medical evidence to support the worker’s claim of a disability was a significant factor in this decision, but medical evidence isn’t always black-and-white, says Oppenheim.
“If you take away those other factors and can demonstrate that the worker had no other real choice but to completely remove the mask, and you remove the fact that there were public health recommendations regarding masks, then perhaps the employer would have had more difficulty,” he says. “If the employer hadn't demonstrated some willingness to accommodate the employee and instead said, ‘No medical certificate, no accommodation,’ I don't know if that would have been good enough.”
“It’s reasonable to insist upon a medical certificate when an employee seeks an accommodation based on a disability, but that ought not to be the end of it,” adds Oppenheim. “There still ought to be a willingness to explore accommodation in advance of getting that medical certificate - notwithstanding what this case seems to say, which is that a medical certificate is a must-have.”
“An employer always needs to manage their obligations and demonstrate that it was willing to accommodate and explore possible solutions.”
