‘The legal duties owing to an employee are usually much more onerous than duties owed to a walk-in customer’
One of the things many people around the world have gotten used to is wearing masks but what about for those people who — because of medical reasons — cannot wear a face covering, how should employers and commercial workplaces handle this?
Canadian HR Reporter spoke with Jonathan Lam, associate at Gowling in Vancouver, about the legal fine points of enacting a mask-wearing policy for both employees and outside clients.
Q: What should an employer do when preparing a mask-wearing policy?
A: “Employers and businesses, especially those with sizable operations, would be wise to seek legal assistance to prepare a mask-wearing policy.
“The policy should be in writing and readily accessible by employees. In terms of customers of commercial or retail businesses, there needs to be clear signage on the mandatory mask policy that are physically located near all entrances and it should be readily accessible. Copies should also be made available on the premises in case some customers would like to look at the policy.”
“Employers should also consider taking this opportunity to refresh or provide training on bullying and harassment policies and violence in the workplace because dealing with angry customers about mask policy, there’s likely going to be a lot of relevance in respect to anti-violence and workplace harassment policies. It’d be a good chance to offer both training sessions hand-in-hand on the same day.”
Q: What constitutes a disability in this case?
A: “This stems from the government orders imposing the use of mask in indoor spaces. In B.C., the relevant order contains exemptions and it’s largely similar across the provinces. The first exemption is people with health conditions or with physical, cognitive or mental impairments who cannot wear a mask; the second one is people who cannot remove a mask on their own; the third exception is children under the age of 12 [and] if you have to remove your mask every time you communicate because of a hearing impairment, then you don’t have to wear a mask.
“In B.C., businesses are not required to ask customers for specific proof that an exemption applies for them. If a customer shows up at your door and says, ‘I’ve got a condition and I’m exempt,’ in order for the business to comply with a government order, the business doesn’t have to specifically ask the customer for proof of disability; that’s not practical and the government has said that’s not required.
“But what is required is at least a business should make some inquiries if a [client] shows up at the door without wearing a mask. The business should document that interaction in writing, in case there’s any trouble down the road.
“For employees, it’s a little different. There’s a greater leeway for an employer to inquire why an employee is not able to comply with the mask policy. While an employer is not entitled to specific medical information or diagnosis, it is generally entitled to inquire and confirm that there is in fact, a valid medical issue for the refusal and that includes asking for a physician’s note.
“It’s largely similar to cases of sick leave and disability requiring accommodation in other employment contexts.”
Q: How far should a business go for an accommodation?
A: “If the business can show that allowing an employee or customer without a mask to enter the premise would truly cause undue hardship for the business, then there could be grounds to deny entry because employers have a duty to also protect the health and safety of the employees.
“If it’s in a retail setting, someone’s not wearing a mask and showing up, they want to purchase a litre of milk for instance, at a grocery store, what accommodation might look like would be to say, ‘We’ve got a curbside pickup program, one of our staff member will go in and grab a litre of milk for you.’ That’s a form of accommodation.
“It’s really case-by-case especially if the business involves high-risk populations. Even if a client visited a private care facility [and] has a medical condition that stops him from wearing a mask, the business can’t accommodate because to do so would cause undue hardship and would materially put all the residents and staff at risk.”
Q: What are the main differences between employees and customer?
A: “From both the legal and practical perspective, the legal duties owing to an employee by an employer are usually much more onerous and significant than the duties owed by a business to a walk-in customer.
“This also means that potential legal liability is often a lot greater when the business is faced with the discrimination claim from an employee who has been disciplined because of violation of the mask policy, versus a customer who has been denied entry.”
Q: “Does the type of mask matter?
A: “Employers and businesses can certainly require and specify the type of mask they want, especially for certain industries where perhaps there’s a lot of face-to-face interaction between the client and a customer, where a medical-grade mask might be prudent.
“In B.C., the use of a face shield alone is not sufficient and you would need to have something additional to that.
“To the extent an employer requires the use of a specific medical-grade mask or PPE for employees, it has an obligation to provide the equipment free of charge. If you want employees to work with N95 medical mask, then that’s above the standards required by the government and the employer has a duty to provide that free of cost to the employee. It’s similar to requiring the use of a work uniform, employees don’t have to pay for that.”
Canadian HR Reporter also spoke to experts about some key considerations for employees looking to move to another jurisdiction and how to survive a compliance audit.