Can B.C. Businesses Force Employees and Customers to Wear Masks?
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On November 24, 2020, British Columbia issued a Public Health Order requiring the use of masks in all public indoor spaces in the province (the “Order”). In this blog post, we answer some frequently asked questions posed by business owners and employers about the Order.
Mandatory Masking in Public Indoor Spaces
Masks are now mandatory in all “indoor public spaces” in B.C. Business owners and employers should review the Order to identify the precise impacts on their business, but here are the key components of the Order:
Duties of Operators/Employers in Respect of Mandatory Masking
WorkSafeBC expects employers operating in public indoor spaces to revise their COVID-19 Safety Plans to address the Order, including:
Operators and employers are not responsible for enforcing the Order vis-à-vis members of the public (i.e. customers), but can contact local bylaw services for assistance dealing a visitor contravening the Order.
Can Operators/Employers Impose Additional Requirements?
Many businesses have asked whether they can have a masking policy that is stricter than the Order. The answer is yes, although the source of the legality of such a policy is not as clear. Interestingly, section 7 of the Order directly contemplates an operator’s ability to have a masking policy that is stricter than the Order, so long as the operator’s policy is consistent with the Order.
One of the primary rationales supporting a stricter masking policy is an employer’s duty to protect its employees and to provide them with a safe workplace. WorkSafeBC issued guidance following the issuance of the Order recommending that employers consider whether updates to their COVID-19 Safety Plan are appropriate. In creating a masking policy, operators/employers should consider their unique work environment and the potential risks to their specific employees.
Masks for persons under the age of 12
One area where many operators/employers have contemplated taking a stricter approach than the Order is with visitors under the age of 12. Unlike in schools where children are separated into controlled cohorts, workers in a business that is in a public indoor space (e.g. a retail store in a shopping mall) may interact with hundreds of different children under the age of 12 each day, without any ability to track and contact trace those children. While children under the age of 12 may be lower risk, requiring children to wear masks in certain environments may provide employees with an added level of protection. In fact, many employees are demanding that their employers enforce masking policies stricter than the Order.
The World Health Organization recommends that children over the age of 6 be required to wear masks. Other Canadian provinces are recommending a stricter approach than in B.C. In Ontario and Alberta, only children aged two and younger are exempt. In Saskatchewan, children under age two are not required to wear a mask, as well as children aged 3 to 12 if they are not reasonably able to. In Quebec, children under the age of 10 are not required to wear a mask, but it is recommended for children between ages 2 and 9.
Masks in workplaces, or spaces in a workplace, not covered by the Order
The mandatory mask requirement in the Order only applies to public indoor spaces – and in some cases, only certain areas within those spaces. For example, section 2(b) of the Order provides that it applies to “the indoor common area” of an office building, a hotel, a hospital, a courthouse, or a post-secondary institution. Thus, within a workplace, the Order may apply to some, but not all spaces within the workplace.
In cases where the Order does not apply or only applies to certain spaces within the workplace, an employer may want to consider implementing a masking policy, subject to appropriate medical exemptions, requiring employees to wear a mask in some or all spaces within these workplaces.
Employers should be mindful of spaces within their workplace where there is potential for COVID-19 transmission such as where physical distancing or barriers is not possible. The B.C. provincial health officer strongly recommends that masks be worn in all shared indoor workplace spaces, including elevators, kitchens, hallways and break/lunchrooms. Similarly, WorkSafeBC requires that masks be worn by employees where they are interacting in close proximity to other employees or members of the public. WorkSafeBC has also issued industry specific masking guidance, including for restaurant and personal services industries.
Given the current state of the pandemic in B.C., it is likely that mandatory masking is likely to remain at least for the near future and may even be expanded. Emergency Management BC is currently considering where mandatory masking may be advisable beyond public indoor spaces. Similarly, the B.C. government is considering a further order to require masks in common areas of apartment buildings, condos and workplaces. Employers should ensure that they are revising their COVID-19 Safety Plans and amending them to address these new realities.
What Happens if a Visitor Refuses to Wear a Mask?
The answer to this question depends on the source of the requirement to wear the mask.
Visitors to a public indoor space that are not exempt and refuse to wear a mask are in breach of the Order. Although a “public space”, many such premises are private property and the operator has the right to deny entry or to ask such persons to leave the space. If the visitor refuses to leave, or is acting in an aggressive or belligerent manner, the business can call the local bylaw enforcement office to have the Order enforced, and the unmasked visitor removed from the premises.
If the visitor refusing to wear a mask is not covered by the Order, but is required to wear a mask pursuant to the operator’s/employer’s policy, then it is the operator/employer that is responsible for enforcing their own policies. In such instances, the employer/operator may wish to contact non-emergency police services to gauge their willingness to attend and assist in removing the person from the premises.
In both of the above scenarios, operators/employers should be aware of the threat of violence to employees being asked to confront visitors not complying with the Order or mandatory masking policies. Employers have a duty to provide employees with adequate information, training, instruction and supervision to do their job safely. This includes ensuring that employees who are expected to confront such persons are aware of the risk of potential violence, and trained in how to safely approach such persons.
What Happens if an Employee Refuses to Wear a Mask?
Employees must abide by the protocols and policies in their employer’s COVID-19 Safety Plan, which may include the use of masks for all of their duties, or for some limited circumstances.
If an employee refuses to wear a mask contrary to an employer’s masking policy, the employer can discipline that employee in the same manner it would for breach of other health and safety policies. In implementing the masking policy and prior to taking any disciplinary action, employers should be mindful of applicable human rights legislation, which prohibits discrimination on the basis of a number of protected grounds, including disability.
If you would like more information about the mandatory masking order and how to implement a policy appropriate for your workplace, please contact Michelle Jones, Cory Sully, or another member of Lawson Lundell’s Labour, Employment & Human Rights Group.
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