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Bylaws relating to face masks create issues for employers
29 Jul 2020
By Jennifer Zeilikman
Bylaws relating to face masks create issues for employers

On July 24, 2020, the municipality of York Region mandated that all businesses and organizations, which operate in “enclosed public spaces” during Stage 3 of the economic reopening of Ontario, must use best efforts so that only individuals who wear a face covering can enter the premises of those establishments.

York Region’s regulations are similar to many other regulations other Ontario municipalities have also recently enacted.  These regions have done so in an effort to mitigate the impact of COVID-19 and to try to stem a possible “second wave” of the virus.    

We have chosen to highlight York Region’s regulations, as our firm is located there.  York Region’s regulations are very similar (and virtually identical in terms of outcomes) to Ontario’s other municipalities’ enacted regulations.  

The York Region regulations relating to businesses and organizations that operate in “enclosed public spaces” are that such places must have a policy in place that prohibits persons from entering the premises of these establishments unless those persons are wearing a face covering.  A face covering is a defined term by the municipality, which means that the person must wear either a non-medical mask or other cloth covering like a scarf or bandana.  The only requirement is that there is a barrier that covers the nose and mouth.  Employees must use “best efforts” to try to prevent anyone without a face covering from entering the premises, which means that they must verbally advise the person of the requirement to wear a face covering.  An “enclosed public space” is also a defined term, which means any premises used as a place of business for the sale or offering for sale of goods or services and includes malls, bars, restaurants, libraries, art galleries, convention centres, etc.  

A person is exempt from wearing a face covering in York Region if 1) the person is a child under five (5) years old; 2) the person cannot wear a face covering because of a medical condition; 3) the person is unable to take the face covering on or off without help; and 4) the person requires accommodation under the Human Rights Code. No person shall be asked for proof that they have an exemption or be required to provide information regarding their exemption.   

Exemptions arising out of the last three categories will present numerous challenges for employers. It is understandable that if a person has a disability that would prevent them from wearing a face covering then they ought not to be required to wear a face covering unless not doing so would clearly place others in danger. However, the fact that the municipality has set out that no person shall be asked or required to provide information about their exemption is actually beyond what could be practicably attainable during the unprecedented time of the global Coronavirus pandemic.  A person under a disability is normally entitled not to disclose their diagnosis of a disability under Ontario’s Human Rights Code.  However, they may be asked about facts sufficient to allow an establishment to make an educated decision as to whether (a) the person in question needs to be accommodated and (b) how such an accommodation should take place.  Under York Region’s current requirements, a frontline employee would be effectively unable to even to even inquire as to why the face covering is not worn which could lead to the exemption’s abuse. 

The bottom line is that these regulations put employers in a difficult position where they are required to balance two competing interests.  On one hand, they are expected to account for the health and safety of their staff and customers and on the other hand, they are asked to protect certain persons’ human rights.   These regulations and others like it do not provide enough direction to employers in order to assist them in dealing with these issues and the question remains as to whether or not an employer can enforce these regulations in a way that is respectful, effective and safe.  We would suggest that employee training is required to try to navigate these difficult issues and we would strongly advise that employers prepare a policy setting out instructions to help employees if they are confronted with a customer not wearing a face covering.  

The above article is for general information purposes only, does not constitute legal advice or create a solicitor-client relationship. Because each case is unique and factually driven, if you have concerns with regard to the foregoing issues, please make an appointment with one of our lawyers or a qualified legal practitioner elsewhere.