Employers have an obligation to ensure a safe workplace for employees. This obligation remains even as Ontario announces that masking mandates will end on March 21, 2022 and mandates are lifted across the country.

Therefore, while restrictions are being lifted, employers should be cautious about removing mask and vaccine mandates, as COVID-19 remains a public health concern. At the same time, mandatory vaccination and masking policies have faced resistance from some employees. This places employers in a difficult position where some employees will be frustrated that policies are being removed, while others will welcome it.

Consequences of removing masking and vaccination requirements

If you remove masking and vaccination requirements, you may be faced with employees refusing to work claiming an unsafe workplace. If an employee refuses work they must promptly report the reasons for their refusal to the employer.

At this stage, you could either resolve the issue by, for example, allowing the employee work from home, if possible. If the matter does not resolve, and the employee insists the workplace is unsafe, the Ministry of Labour (“MOL”) will get involved. They will investigate and make a decision, either ordering changes or not, and the worker will return to work. These investigations can be time consuming and disruptive.

Presently, many employers have already implemented masking and vaccination policies. As COVID-19 does still pose a risk, it may be wise for employers to maintain COVID-19 workplace safety measures. Although some employees may be unhappy with this, they have likely already complied with the policies and will continue to follow them.

For example, if you have a business with 20 employees, all of whom complied with mandatory vaccination and masking requirements without complaint, then it would be practical to keep your mandatory vaccination and masking policies in place, at least until there is broader societal shift away from COVID-19 policies. For example, you could follow the direction of larger firms.

Consequences of maintaining masking and vaccination requirements

On the other hand, you may find that employees are less likely to comply with COVID-19 policies as we all “learn to live with” COVID-19. This means you will need to consider the best response to employees refusing to comply. At the height of COVID-19, many employers took a firm position that non-compliance with mandatory vaccination policies justified termination with cause. This position is still untested in court, but so far it appears decision-makers will consider the context of that specific workplace and policy. If an employee refuses to continue to comply with a mandatory masking or vaccination policy, and you are considering termination, the safest approach is to terminate them without cause.

A word of caution, if you have not yet implemented COVID-19 policies, and you now intend to, you should consider whether it is truly necessary to ensure workplace health and safety. The justification for employers unilaterally implementing these policies diminishes with the risk posed by COVID-19, and with it the justification for terminating an employee with cause.

Key takeaways as we learn to live with COVID-19

In this case, timing and context is an important consideration. When COVID-19 first hit, federal and provincial governments enacted masking, and vaccination mandates. Keeping an eye on government responses will assist you in determining when, if ever, you should remove your COVID-19 policies.

However, as we have seen, COVID-19 ebbs and flows. Accordingly, while it may be safe to remove all COVID-19 policies this summer, that may not be the case next winter. Therefore, you may wish to keep your COVID-19 policies in place but add some flexibility. Moving forward, you may wish to revise your COVID-19 policies as follows:

1. Make masking requirements discretionary;
2. Make vaccination requirements discretionary;
3. Require that all new employees be vaccinated; and
4. Require that all new employees explicitly agree to the COVID-19 policies in their employment agreement.