Inability to mask creates employer obligations

Sally had worked in a food processing plant in Ontario for 24 years when the COVID pandemic began in March 2020.

Initially, the employer established protocols to decrease the interaction among employees and maximize physical distancing. It staggered shifts and breaks and tried to stagger washroom use. Handwashing stations were established throughout the facility.

Where possible, zones were established and employees were required to stay in their zone throughout the working day. The list went on.

The food processing plant remained open because it was providing an essential service and management was also aware that if there was an outbreak at the facility the whole thing would be shut down.

By November 2020, everyone was required to wear masks except for those who filled out a waiver form for medical reasons. At that time, no doctor’s note was required.

Later in November, a mask mandate was issued by public health authorities. Face masks had to be worn in the facility where physical distancing could not be maintained. By mid-December, the employer had its policy firmly in place and noted that if someone was unable to wear a mask they may be entitled to an unpaid leave. As it turned out, very few of the 600 employees in the facility could work all day with distancing in place and so they at least sometimes had to wear a mask. Sally had put in a waiver form and for March 2020 until January 2021 she worked in a variety of roles where she could distance for the most part. Sally had explained to the employer that wearing a face mask caused her elevated blood pressure, increased anxiety, heart palpitations, dizziness and nausea.

On Jan. 4, 2021, Sally was told in writing that to be scheduled for work she would be required to wear a face mask that covered her nose and mouth. With the government mandates the flexibility the employer had been able to exhibit was now impossible. Sally was effectively laid off in mid-January. In early March she provided a note from her doctor saying she “has a sensitivity to facial masks.”

The problem was the employer had no positions available that could always distance and where the worker would not be required to wear a face mask sometimes, even for a short period.

In mid-June, the employer offered her a forklift operator position that would require minimal mask wearing. Sally refused it and in July 2021 handed in a doctor’s note saying she “perceives difficulty breathing when wearing a mask which causes her great difficulty.” In August the doctor sent a note saying Sally had a medical condition that is induced by wearing a mask. Sally was eventually returned to work on March 25, 2022. She had been off for about 14 months without pay. She grieved through the union complaining that her right to be accommodated under the Ontario Human Rights Code had been violated. The adjudicator accepted Sally had a phobia with respect to wearing masks, which is a real illness and disability that warrants accommodation under the code.

An employer has to try to accommodate, but only to the point of undue hardship. The adjudicator recognized that the employer was, appropriately, doing everything it could to protect the health and safety of other employees and to avoid an outbreak and shut down the facility.

The employer had done everything it could to find a way to accommodate Sally. The problem was there were simply no jobs available where masking wasn’t required for at least part of the day. It was also working under a government-mandated masking requirement where distancing could not be maintained.

Ultimately, Sally’s grievance was dismissed and she did not get compensated for her 14 months of lost work. The employer had acted reasonably and diligently given the information that was available. This case will have some effect on cases still winding their way through our justice system where people are claiming they were unfairly terminated or laid off as a result of not being vaccinated or wearing a mask. If an employer can prove it considered all options and none were available, it will likely prevail in any such case.

This article was originally published in The Hamilton Spectator, where Ed Canning is a freelance contributing columnist.