We’re requiring all of our workers to use face masks when they’re indoors but some of them are refusing. Do we have the right to discipline them? And, if so, under what law?
Probably yes, but it depends on the situation.
OHS laws require employers to furnish and ensure workers use PPE appropriate to protect them against the hazards to which they’re exposed at work. During the COVID-19 pandemic, such PPE includes respiratory protection to all workers exposed to risk of infection.
The reason for this is because of how COVID-19 spreads. The dynamic: Respiratory droplets from a person carrying the virus come into contact with another person, either as a result of direct physical contact or indirectly via droplets that land on surfaces that another person subsequently touches, breathes or ingests. Face masks keep this from happening by containing the droplets and ensuring that mask wearers don’t spread them. Wearing a mask, in other words, doesn’t protect the wearer so much as the persons with whom he/she has direct or indirect contact. The wearer’s protection comes from knowing that everybody else in the place is also wearing a mask.
Who Has to Wear a Mask
Under current Canadian Chief Medical Officer (CMO) guidance, all individuals should wear face masks where social distancing, i.e., 6 feet/2 meters of physical separation can’t be maintained. That includes not just workers but also any and all individuals at the facility, including contractors and subcontractors, customers, clients and other visitors. The only exception is for people who work remotely, alone, in isolation or in other settings and conditions where they have no close contact with others.
Discipline for Mask Refusals
A worker required to wear who refuses to do so is subject to discipline the way any worker who deliberately disobeys an organization’s OHS policy would. Just follow your normal progressive discipline policies and procedures.
Disability & Accommodation
Exception: Refusal to wear a mask may be justified to the extent it’s based on a disability, e.g., where a worker has a skin condition making it unreasonably painful or uncomfortable to wear masks. At that point, it becomes a matter of accommodating the worker’s disability to the point of undue hardship, e.g., an alternative method or device or allowing the worker to work in complete isolation. However, the point of undue hardship is reached when the accommodation would endanger others, e.g., letting the worker work close to others without a mask.
Religious rights can also be grounds for refusing to wear respiratory protection. This has been an issue in cases where workers whose religions require beards have to use tight-fitting respirators requiring an effective seal to the nose and face. The good news is that the non-medical masks that the vast majority of workers will be required to use to avoid spreading COVID-19 isn’t tight-fitting and should be effective even if users have facial hair.