Williams HR Law LLP

MASK POLICY DID NOT DISCRIMINATE AGAINST EMPLOYEE WITH MASK-WEARING PHOBIA

September 6, 2023

As the Public Health Agency of Canada notes “early signs” of a Fall 2023 COVID-19 wave, it remains crucial for employers not to overlook the lessons learned during the pandemic. The recent decision of United Food and Commercial Workers Canada, Local 175 v Highbury Canco Corporation [UFCW] serves as a reminder of the importance of developing appropriate health and safety policies and handling accommodation requests in good faith. This decision revolves around an employee’s grievance, alleging that her employer failed to accommodate her disability—a medically supported phobia triggered by wearing a face mask—after the employer placed her on an unpaid leave of absence when she was unable to comply with the company’s mandatory mask policy. Ultimately, Arbitrator Kugler dismissed the grievance, finding that the employer developed and implemented the mask policy honestly and in good faith.

Facts

The employee worked at a large food processing facility with over 600 employees for a total of 24 years, the last eight of which were spent with the current employer.

In response to the COVID-19 pandemic, the employer implemented a policy that required all employees to wear a face mask when unable to maintain six feet of physical distancing at the facility. The policy came into effect on December 14, 2020, and followed evolving public health guidelines and directions from a Ministry of Labour Inspector.  The mask policy was part of a broader initiative aimed at preventing COVID-19 transmission.

Due to the employee’s disability, she was unable to comply with the mask policy.  A psychologist confirmed that the employee suffered from a specific phobia associated with mask wearing. The employee claimed that wearing a mask caused her to experience elevated blood pressure, increased anxiety, nausea and other health issues. The employer eventually conceded that the employee had a disability within the meaning of the Ontario Human Rights Code [Code].

In response to the employee’s inability to comply with the mask policy, the employer placed her on an unpaid leave of absence for 14 months. The employer permitted the employee to return to work once the Ontario government’s mask mandate was discontinued, such that the employer’s mask policy was no longer required.

Decision

The employee established a prima facie case of discrimination by demonstrating that:

  • she had a “disability” protected under the Code;
  • she experienced an adverse impact, as she was placed on an unpaid leave of absence for 14 months; and
  • her disability was a factor in the adverse impact she suffered, as her unpaid leave of absence was directly related to her non-compliance with the mask policy due to her disability.

As such, the employer had to demonstrate that the mask policy was reasonable and bone fide in the circumstances, and that it fulfilled its duty to accommodate the employee to the point of undue hardship. The employer successfully established the reasonableness of its mask policy by demonstrating that:

  • the employer adopted the mask policy for a purpose rationally connected to the performance of the employee’s job as a Line Production Worker, primarily to ensure workplace health and safety.
  • the employer’s adoption of the mask policy was in good faith, driven by an honest belief in the necessity of masking to fulfil their workplace health and safety obligations.
  • the mask policy was reasonably necessary to accomplish the goal of ensuring workplace health and safety. Given the context of the COVID-19 pandemic and the impracticality of maintaining physical distancing among 600 employees in the facility, accommodating the employee’s mask phobia would have resulted in undue hardship with respect to the employer’s health and safety duties.

In their undue hardship assessment, the arbitrator analyzed the specific risks posed by the COVID-19 pandemic contextually, noting that the employer was “doing its best to protect the health and safety of its employees in these chaotic and ever-evolving circumstances”. These circumstances included requirements imposed by public health authorities to wear masks in public places, as well as directions from a Ministry of Labour Inspector that led the employer to adopt a mask policy.

Notably, the arbitrator also found that the employer discharged its procedural duty to accommodate the employee. When faced with the employee’s request, the employer’s crisis management team conducted an individualized assessment of the employee’s circumstances. It considered the medical information provided by the employee and the union, options to limit the employee’s interactions with others in the workplace, the Field Visit Report prepared by the Inspector from the Ministry of Labour, and its health and safety obligations under the Occupational Health and Safety Act. The employer also engaged with the union to find a solution. However, the employer reasonably concluded that allowing the employee to work without a mask, without certainty that physical distancing could be consistently maintained, introduced an unacceptable level of risk amounting to undue hardship.

Key Takeaways

While COVID-19 safety measures are no longer mandatory in most Ontario workplaces, Arbitrator Kugler’s decision remains a valuable resource for employers as they evaluate the necessity of workplace mask mandates and other safety precautions, as well as how to handle accommodation requests. The UFCW employer’s individualized and contextual approach to accommodating the employee played a crucial role in their successful  response to the grievance. Employers should bear in mind that, even if it may not be possible to accommodate an employee short of undue hardship, they still have a procedural duty to actively explore potential accommodation solutions.

For more information on the impact of COVID-19 on workplace policies, please refer to our blog post discussing a recent decision where an employee’s failure to comply with a vaccination policy led to the frustration of the employment agreement.

This blog is provided as an information service and summary of workplace legal issues.

This information is not intended as legal advice.