Employment lawyer reveals the legalities of enforcing mask mandates
The Canada Post announced that it’s seeking clarification from the Federal government regarding a face mask policy, after the company prohibited staff from wearing N95 masks at work in favour of company-provided cloth masks.
"We are now working with federal authorities to seek clarification and understand their guidance so that we can continue to ensure we are doing everything possible to keep our employees safe," said the Post.
According to the Crown corporation, it has been following the guidance of the Public Health Agency of Canada "without exception" in its approach to keep employees safe.
"We understood from the start that they were the experts, not us, and therefore following their lead was crucial to keeping our people safe," said the company.
The statement came after a report from CTV News featured an employee of the Crown corporation who was sent home for choosing to wear an N95 mask instead of the company-provided cloth masks. The Canada Post previously told CTV News that their policies are in accordance with recommendations from the Public Health Agency of Canada. The agency added that it’s recommending facemasks that’re well-fitted, have at least two layers of breathable tightly woven fabric, and an effective middle filter layer.
"The company fully supports these guidelines and therefore requires all employees to wear a Canada Post-supplied face covering, which is either a reusable cloth face covering or a disposable medical mask," a spokesperson previously told CTV News.
If not worn, the representative said the company will ask its non-compliant employees to leave. This rule, however, drew criticism as several health experts have recommended upgrading protection by using stronger masks such a N95s or KN95s. The US Centres for Disease Control and Prevention (CDC) even updated its guidelines this month to clarify that the public can now choose to wear N95 and KN95 masks because they offer the best protection against COVID-19.
"Whatever product you choose, it should provide a good fit and be comfortable enough when worn properly so that you can keep it on when you need to," said the updated guidance.
The Canadian Union of Postal Workers also expressed concern over the situation and called on the Canada Post to "provide N95 masks or suitable alternatives to all postal workers." If not, the company at the very least should allow those who have purchased N95 or KN95 masks to wear them, added CUPW president Jan Simpson in a statement to CTV News.
"As COVID-19 continues to spread rapidly, Canada Post Corporation should be doing everything in its power to protect postal workers, who continue to help people stay home and stay safe," Simpson said.
Can non-compliant staff be terminated?
Workplaces around the world have established mask mandates to ensure staff are protected from COVID-19. Mask mandates predated the vaccine mandates, with employers raising questions around the legalities of forcing employees to cover their faces. Non-compliance on such policies could lead to progressive discipline and eventually termination, according to David A. Whitten, senior partner at Toronto-based law firm Whitten & Lublin. Whitten told HRD that employers can terminate an employee if they refuse to wear a mask - as long as it is stipulated in the company's legislature.
“Essentially, yes, an employer can choose to terminate if they have a clearly worded Health and Safety Policy which requires all employees to wear a mask,” Whitten told HRD. “The policy should make it clear that if an employee refuses, they'll be subject to discipline up to and including termination of employment. Alternatively, an employee can be progressively disciplined.”
Progressive discipline can take place if a worker fails to correct an ongoing issue, despite having been given an opportunity to do so.
“In short, an employee who refuses to wear a mask can be fired in the same way that any other employee could be fired for not following health and safety guidelines,” added Whitten.