A worker is seen wearing a mask as he looks out of a subway car on April 1, 2020 amid the COVID-19 pandemic in Toronto.Cole Burston/Getty Images
The Question
My employer has asked me to go back to work. I will be required to wear a mask but I have a medical condition that makes it very difficult to breathe through a mask for long periods of time. I have documentation from my doctor about my condition. If I choose not to go back to work, will I be fired? Will I then become ineligible for the Canada Emergency Response Benefit?
The First Answer
Nicole Skuggedal, Partner, Lawson Lundell LLP, Vancouver:
If the medical condition that makes it difficult for you to wear a mask is a disability, your employer has a duty, under human rights legislation, to accommodate you up to the point of undue hardship. There are two key steps to the accommodation analysis.
The first step is to determine whether your employer’s requirement that you wear a mask is a bona fide occupational requirement, or a BFOR, meaning it is necessary to accomplish a legitimate work-related purpose or goal. If you work in a position where masks are required by legislation, such as health care, then the requirement to wear a mask will most definitely be a BFOR. During the coronavirus pandemic, a mask may be a BFOR for a number of other positions if physical distancing is not possible or practical. If the mask is not a BFOR, then your employer must allow you to attend at work without wearing a mask.
If wearing a mask at work is a BFOR, the next step is to determine whether your employer can accommodate your inability to wear a mask for prolonged periods of time. Possible accommodations may include:
- Requiring you to wear a face shield opposed to a mask.
- Reducing the length of your shift.
- Providing you with alternate job duties, if there are productive job duties available that do not require you to wear a mask.
If there are no means to accommodate you in the workplace, your employer will be required to provide you with a medical leave of absence. Subject to any applicable collective agreement, contract or workplace policy, there is no requirement for your employer to pay you during a medical leave of absence but you should be eligible for the Canada Emergency Response Benefit.
If an employee refuses to wear a mask because of personal preference (as opposed to a disability), the employer can discipline and potentially dismiss the employee, provided that wearing a mask is a reasonable requirement for the employee’s position during the pandemic.
The Second Answer
Waheeda Ekhlas Smith, Partner, Pak Smith Employment Lawyers, Toronto:
Under occupational health and safety laws, your employer has a duty to take every precaution reasonable in the circumstances for worker health and safety. It may require employees to wear personal protective equipment if other risk mitigation measures are inadequate for the protection of workers or customers. That said, your employer also has a duty to reasonably accommodate your medical restrictions to the point of undue hardship.
Before you refuse to go back to work, inform your employer about your situation and request an accommodation. Depending on the nature of the work, there may be a variety of accommodations that can be implemented to allow you to continue working without the need to wear a mask for prolonged periods of time. This may include physical distancing, implementing break periods, reassigning certain work duties and work-from-home arrangements where possible, among other measures.
If the nature of the work is such that wearing a mask for long periods is necessary for health and safety reasons, then you should consider asking for a leave of absence because of your health restrictions. Be prepared to provide medical documentation from your doctor outlining your health restrictions. A leave of absence should be granted and it is against the law for an employer to fire an employee because she or he is unable to work for health reasons.
Based on current qualification criteria, if you stopped working because of COVID-19, you are eligible for the CERB and possibly employment insurance benefits if you have accrued enough insurable hours. Do note that you cannot receive the CERB and EI at the same time.
If your employment is terminated, you are eligible for a severance package and most likely other monetary remedies from your employer.
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