Effective July 7, 2020, Ottawa followed the lead of Kingston and Toronto by mandating the use of masks in public indoor spaces. Many other municipalities across Ontario have instituted similar rules (or seem to be headed in that direction).
In this blog article we cover the basics of the new mask rules as they pertain to employers. Note that there are small variations in the scope and application of mask rules between different municipalities. For this purpose of this article, we focus on recent mask requirements instituted in Ottawa by Ottawa Public Health.
What is required?
Ottawa Public Health requires that all visitors, customers and employees must wear non-medical masks or face coverings within indoor public spaces. Plastic face shields are not considered acceptable substitutes for masks or face coverings.
There are several exemptions to the mandatory mask rule. For instance, employees are not required to wear a mask when stationed within or behind a physical barrier (e.g. plexiglass). Likewise, children under 2 years of age and those who require accommodation for medical or other reasons (such as those pertaining to the Human Rights Code) are exempt from wearing a mask. Masks may also be temporarily removed when necessary for situations such as consuming water, eating food or receiving certain types of services.
Employers are required to:
- Post at every public entrance a sign proclaiming that masks must be worn on the premises. A copy of Ottawa Public Health’s mandatory mask poster can be found here;
- Develop a policy to ensure that “no member of the public is permitted to enter or remain in the public areas of the Enclosed Public Space unless he or she is wearing a Mask in a manner that covers their nose, mouth and chin”;
- Train employees on how to safely implement their mandatory mask policy; and
- Have available alcohol-based hand rub at all entrances and exits for the use of visitors, customers and employees when entering or exiting the premises.
To help employers properly prepare and implement a mandatory mask policy, Ottawa Public Health has developed a Letter to Employers, Business Owners and Operators which should be reviewed in detail.
Where must mandatory masks be worn?
Ottawa Public Health mandates that masks must be worn within “indoor public spaces of businesses and organizations, accessed by the public.” There is no exhaustive list available as to what does or does not qualify as an indoor public space.
For instance, do common areas of apartments or condominiums qualify as indoor public spaces? Despite these often being high traffic areas, most jurisdictions (Ottawa included) have deemed such spaces as exempt from mandatory mask usage.
By contrast, the situation related to office building lobbies and business reception areas is more confusing. These are often publicly accessible spaces, typically having little to no barriers to entry during regular business hours. Yet Ottawa Public Health’s current sample list of indoor public spaces requiring the usage of masks fails to include any express reference to such areas (or clearly analogous spaces). The only guidance provided is that lobbies and reception areas of facilities such as hotels and hospitals are considered mandatory mask zones.
Ottawa is not alone in its failure to provide clear guidance with respect to office building lobbies or business reception areas. The situation is similarly unclear in Toronto.
If your organization is faced with a question about whether a space is (or is not) one where masks are mandatory, we recommend contacting your local health unit or municipality for guidance. Failing that, as an interim measure, if your space is one to which the public regularly has access, it may be best to assume masks are mandatory until informed otherwise.
How is the mandatory mask rule enforced?
Enforcement of the mandatory mask rule in Ottawa is currently being conduced on a good faith, educational basis. Employers are required to provide a verbal reminder to individuals not wearing a mask within an indoor public space. For those claiming an exemption to the mandatory mask rule, no proof is necessary. Ottawa Public Health specifically directs employers to refrain from adopting proof of exemption practices.
It is anticipated that when Ottawa officially mandates its mandatory mask rule by means of a bylaw (expected to be implemented on July 15, 2020), the municipality will follow the lead of jurisdictions like Toronto where fines may be issued pursuant to the Provincial Offences Act. According to local media reports, it is being suggested that fines in Ottawa for failing to wear a mask when required may range between $200 to $400.
Employers should take special care when training staff with respect to enforcement of a mandatory mask policy. Protocols should be developed to ensure that staff tasked with enforcement are not left to operate in isolation and have access to a ready support system in case confrontations develop. Employers should also refrain from requiring staff to bar access to a premises when faced with an individual who refuses to follow mask protocol. If verbal warnings fail to resolve the situation, employers should contact local public health, bylaw enforcement or police services as may be appropriate.
Getting it right
While we have focused on the requirements in Ottawa for this article, most municipalities across Ontario are adopting very similar rules and bylaws. If you have questions about how to develop or apply a mandatory mask policy for your organization, be sure to start by checking out the resources provided by your local municipality and do not hesitate to seek legal advice when necessary.
Vey Willetts LLP
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