'The employer… made an effort to try to see whether it was manageable' during pandemic
An Ontario employer met its duty to accommodate a worker who was unable to wear a mask in a food production facility during the pandemic and was placed on unpaid leave, an arbitrator has ruled.
Although the employer was unsuccessful in accommodating the worker with paid work, it’s an example of how trying to do so can be enough, says Sharaf Sultan, principal of Sultan Lawyers in Toronto.
“If an employer is willing to make a genuine effort [at accommodation], you will often be rewarded for that,” says Sultan. “Even if you feel almost certainly that you’re not going to be able to accommodate, the fact that you are willing to go through that exercise will often be rewarded.”
Workplace safety protocols at food products company
The 54-year-old worker was a line production worker for Highbury Canco Corp., a producer of food products in Leamington, Ont. She worked at the facility for 24 years – eight with Highbury and 16 with the previous owner.
The worker had functional restrictions from open-heart surgery that Highbury accommodated with modified duties.
When the COVID-19 pandemic arrived in March 2020, Highbury formed a crisis team to manage safety and ensure the uninterrupted production of essential food products. The team introduced protocols to maximize physical distancing between employees, handwashing stations, and a COVID-19 screening protocol.
The company started to require employees to wear face coverings, but it was loosely enforced at first. The worker advised that she had a medical issue that caused difficulty breathing when wearing a mask, as well as increased blood pressure, anxiety, and nausea. She was assigned to a driver position, but requested re-assignment because she couldn’t maintain proper physical distancing.
In November 2020, employees who were medically unable to wear face coverings, including the worker, had to complete a waiver form declaring a legitimate medical condition in order to work without one.
Later that month, public health authorities issued a mask mandate. On Nov. 27, an inspector from the Ontario Ministry of Labour advised that face masks were required to be worn by all employees where physical distancing wasn’t possible. Highbury responded with a policy requiring all employees to wear face masks where physical distancing could not be consistently maintained.
An employer’s duty to accommodate doesn’t require that the employee’s choice is central to that accommodation, according to a lawyer.
Mask required for workplace safety
The worker was on vacation and scheduled to return Jan. 4, 2021. However, she discovered that she had been placed on the “sick list.” Highbury advised that she was required to wear a face mask to be scheduled for work and if she couldn’t, she might be eligible to apply for Infectious Disease Emergency Leave (IDEL) under the Ontario Employment Standards Act (ESA).
The worker advised again that she was medically unable to wear a face mask and asserted that it was a human rights issue. Highbury said that it couldn’t allow her to return without a mask given the health and safety risks to its employees and the food products it produced.
The union filed a grievance, alleging that Highbury failed to accommodate the worker and the worker provided a doctor’s note saying that she had a sensitivity to face masks.
Discussions between Highbury and the union continued through early 2021, with the company proposing to accommodate the worker as a forklift operator and truck driver if she agreed to wear a mask in high-traffic areas and a face shield at other times. The union rejected it because the worker was unable to wear a shield or a mask at all.
An employer did not terminate a worker who declined an accommodated job offer but didn’t provide medical information, the Canadian Industrial Relations Board ruled.
Doctor’s notes for medical condition
On July 27, the worker provided another doctor’s note stating that she had difficulty breathing when wearing a mask. Another note a couple of weeks later said that she had a medical condition that was induced by wearing a mask. Highbury reiterated its proposal that she wear a mask in high-traffic areas and a face shield at other times.
The worker remained on unpaid leave until March 25, 2022, when public health authorities lifted the mask mandate and Highbury discontinued its mask policy.
In May 2022, an independent psychological assessment declared that the worker suffered from a “specific phobia (wearing a mask).”
The union maintained that Highbury did not fulfill its duty to accommodate as it didn’t meaningfully engage in a process of determining accommodation. It argued that the worker could have been accommodated in other positions in a large facility where distancing could be achieved.
Highbury argued that it had reached the point of undue hardship as the doctor’s notes were not sufficient to establish a disability and trigger the duty to accommodate. It noted that under the IDEL amendment to the ESA, it wasn’t entitled to request additional medical information. It also said that it couldn’t accommodate the worker without undue hardship, given the mask mandate issued by public health authorities.
An employer met its duty to accommodate despite that fact that the worker didn’t like the solution, the Ontario Human Rights Tribunal ruled.
Request for more medical information allowed
The arbitrator disagreed with Highbury that it couldn’t request more medical information, as the worker didn’t assert a right to IDEL. Instead, she asserted a right to be free from discrimination under the Ontario Human Rights Code. As a result, the ESA’s prohibition against requesting medical information didn’t apply, the arbitrator said.
The arbitrator also disagreed that the duty to accommodate wasn’t engaged. The worker’s disclosure of a medical condition, along with the doctor’s notes, triggered a duty to explore the medical issue and engage in the accommodation process, said the arbitrator.
The arbitrator also found that the worker met the test for prima facie discrimination – she had a disability protected by the code, her unpaid leave was an adverse impact, and the leave was a direct result of her disability. Highbury had an onus to demonstrate that the policy was a bona fide work requirement, the arbitrator said.
The arbitrator found that the mask policy was adopted to protect health and safety in the workplace, which was rationally connected to the job. It was also adopted in good faith because Highbury believed it was necessary to ensure health and safety - meeting the first two parts of the three-part test for a bona fide occupational requirement, said the arbitrator.
The third part of the test was whether the duty to accommodate was met. COVID-19 was “a global catastrophe of epic proportions” and Highbury was trying to follow public health guidelines and keep its workplace safe when the extent of the risk was unknown, the arbitrator said.
“There was quite a bit of allowance for the fact that COVID was this new virus and there were a lot of unknowns,” says Sultan. “It appears that the employer did, at least to the satisfaction of the arbitrator, try to see whether there were some positions in which, despite not having a mask, you can maintain at least social distancing.”
“I'm not sure this decision would be the same if it was something that we knew more about, because the arbitrator mentioned that there was not a lot of information available about COVID,” he adds. “At that point, the employer would be under an obligation to research more.”
A clear accommodation policy can prevent legally difficult scenarios before they arise, says an employment lawyer.
Proposed accommodation for mask mandate
The arbitrator noted that Highbury allowed the worker to work without a mask until the public mask mandate was issued. It then proposed solutions in which the worker only had to wear a mask when distancing wasn’t possible and a face shield, but these were rejected. The evidence indicated that there was no position in which the worker would be able to consistently maintain physical distancing, which introduced “an unacceptable level of risk that amounted to undue hardship,” said the arbitrator in determining that Highbury met its duty to accommodate.
“The employer actually made an effort to try to see whether it was manageable without a mask, it treated it as a disability,” says Sultan. “They actually considered allowing a person to not wear a mask, which I think was a big deal - I don't have confidence that every employer would take that seriously.”
“I think a lot of employers would have just said, ‘Forget it, we're not accommodating a phobia of a mask when compared to the risks associated with spreading this disease,’” he adds. “It’s a relatively unimportant issue pertaining to one individual as opposed to safety and the reliability of a food source to the general public, but the employer seriously looked at it and said, ‘Can we make this work’ despite facts that were not helpful to the employee.”
