McLennan Ross Update for Thursday

By McLennan Ross Labour & Employment Team

What we are seeing

• Calgary city council voted to approve a new bylaw making it mandatory to wear masks in public areas, on public transit, or when using ride share services. Although the final version of the bylaw is still subject to change, the following appears to be the intended scope:
• The definition of public areas will include grocery stores, malls, and places of worship.
• Public areas will likely not include any area where a membership is required for access e.g., a private gym. However, it would apply to people attending a public health facility unless they are exercising.
• The bylaw will not apply to schools or daycares.
• Businesses may be permitted to receive exceptions to the application of bylaw depending on the nature of the business e.g., masks not being mandatory if it prevents getting the offered service, such as a restaurant or dentist. 
• Masks will also not be required if an employee is in a restricted access area, such as a back office or storeroom. 
• Other exceptions will be based on the individual accessing the public area. Masks will not be required for children under 2; people with underlying medical conditions or disabilities that inhibit the ability to wear a mask; people who cannot put on or take off a mask without assistance; and those providing care-giving services which would be hindered by the mask.
• Although not fully clear, it appears that the enforcement of the bylaw will not be left solely to the business owner, as it appears to be the case in Ontario, and as we discussed earlier in our blog. 
• Although businesses may face a fine for failing to enforce the bylaw, individuals appear to also be subject to punishment for failing to adhere to the mask requirement.

What we are hearing

• The Government of Alberta announced its re-entry plan for K to 12 students on July 21, 2020. As we discussed here earlier, the three options were:
• In-school classes resume with near-normal operations while still following public health measures and directions;
• In-school classes partially resume with modified routines, smaller class sizes, cohorts, and alternative day or week attendance; or
• Continued, although enhanced, at-home learning.
• The plan announced by the province is for schools to resume with near normal operations.
• Although some people are concerned about whether the enhanced public health measures will be sufficient to protect students, teachers, and other service providers required to attend at a school, this decision was made in consultation with public health officials and is a rational and good faith attempt to balance the health needs of Albertans with the need for children to receive both education and social interaction.

What we are saying

• With the mask bylaw soon to be in place in Calgary, employers will be required to have their employees in public areas enforce the bylaw, which may lead to unfortunate confrontations as has been the experience in other cities such as Toronto and Ottawa. 
• It is unlikely that requiring staff to wear masks and enforce the bylaw would be considered a material change in the terms and conditions of employment. We recommend a written policy be implemented with a stated requirement that employees enforce the bylaw, a procedure for doing so, and a direction for the employee to avoid conflict by seeking the assistance of a manager or an external resource to deal with an uncooperative customer.
• Having such a written policy will also allow an employer to respond to the suggestion from a bylaw officer that it failed to direct its employees to follow the bylaw. It will also allow the employer to more easily discipline employees who refuse to follow the codified policy.