COVID-19 Developments and Legal Updates

Harold M. Smith, QC and G. John Samms

Effective Monday, August 24, 2020, an order directing the mandatory wearing of masks, pursuant to the Public Health and Protection Act and the Special Measures Orders made thereunder comes into effect. We hereafter refer to this order as the “Mandatory Mask Order”.

The original Mandatory Mask Order, which was signed by the Chief Medical Officer of Health (“CMOH”) on August 17, 2020, was, in our view, rife with ambiguity. Such is the nature of navigating these unprecedented times. Stewart McKelvey’s Labour and Employment Group pointed out legal (i.e. not policy) issues with the Special Measures Order as originally written and, to the credit of the Department of Health and Community Services, officials drafted a clearer order. The CMOH signed it on August 24^th, 2020.

While we believe the currently in-force document is clearer, no document will ever provide perfect guidance for absolutely every factual circumstance. Our goal here is to provide our interpretation of the Mandatory Mask Order to assist our clients in their efforts to comply. Where there is any confusion on the proper interpretation of the Mandatory Mask Order, it ought to be governed by an approach that serves its objects.

The object of the order is undeniably to arrest or stop the community spread of the COVID-19 virus. In that regard, where the order seems vague, it should be interpreted in favour of the object of the order. As a consequence, a best practice is that when there is doubt, resolve that doubt in favour of wearing a mask. This, however, must be tempered with a recognition that employees will push back if there is too much interference with their natural approach to the work.

We will address below some of the common questions we are receiving:

In what circumstances are masks mandatory?

All individuals in an indoor setting, including workplaces, must wear a mask – subject to limited exceptions.

The main exception applies to seated areas. This would include those who are working alone in their personal workstation, office, or cubicle – they need not wear a mask while seated in that specific place. However, if such people move about in their office to go the photocopier, washroom, break room, or any other common area, they must wear a mask. Should workers congregate in any fashion, whether it be an office meeting or conference room, all workers must wear a mask unless physical distancing can be achieved in that particular setting.

Exemptions are also in place for situations where, for occupational health and safety reasons, a worker cannot wear a mask. In that case, they are exempt from wearing a mask unless they are in a common area, whether the area is publicly accessible or not.

The Mandatory Mask Order does not remove any obligation under occupational health and safety legislation to have masks or, conversely, be exempt for safety reasons. The order should be read as mandating masks in addition to any existing requirement.

Should a worker and a non-worker be in the same area beyond the above listed locations and they cannot socially distance, it is recommended that both wear a mask.

Guidance on specific places:

Conference room

Masks are not necessary so long as physical distancing of two metres can be achieved between individuals provided they wear a mask when moving around the indoor setting. Otherwise, masks are necessary.

Hallways

Everyone must wear a mask as this is a common area.

Breakroom / lunchroom / kitchen

Masks are not necessary so long as it is a seated area where physical distancing of two metres can be achieved between individuals provided they wear a mask when moving around the indoor setting. Otherwise, masks are necessary.

Other matters – change of numbers

We wish to point out that the Mandatory Mask Order does not allow an employer to increase the number of workers and/or non-workers in its physical structures. Moreover, the guidelines respecting social distancing remain. Any inability to maintain social distancing will, in our view, increase the requirement for the wearing of masks.

Other matters – gated access

In our view, gated access or security access, does not alter any of the noted restrictions or exemptions mentioned in this update.

Full listing of exceptions in the Mandatory Mask Order is below:

• Children under the age of 5;
• People with physical or mental health conditions – people whose particular physical condition or mental health prevents them from wearing a mask (please see here for further explanation of these conditions);
• During treatments, services, or physical activity where a mask must be removed, for the duration of the treatment, service or activity only;
• Showing identification;
• Seated areas – provided physical distancing of two metres can be achieved between individuals or bubbles and provided they wear a mask when moving around the indoor setting, masks are not required when individuals are seated, including in these places:
  • in the classrooms of a post-secondary educational institution,
  • in a place where activities or services of a religious, cultural, or entertainment nature are offered, and
  • in a restaurant, food court, or a lounge.

Conclusion

Without doubt, the foregoing rules will prove challenging for some. With change comes uncertainty – that uncertainty should be met with an abundance of caution with also a view to following the Special Measures Orders in a practical fashion that will lead to compliance.

This article is provided for general information only. If you have any questions about the above, please contact a member of our Labour and Employment group.

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