As the Federal, Provincial, and Municipal governments begin expanding the list of businesses allowed to open up during the COVID-19 crisis, there is an increasing demand on employers to provide an adequate and safe work environment for employees, customers, and the public at large.
Per the Ontario Ministry of Labour, there is no strict requirement in Labour Legislation for an employer to provide workers with personal protective equipment (PPE), but employers have a general duty under the Ontario Health and Safety Act (OSHA) to “take every precaution reasonable in the circumstances” to protect workers. This has been interpreted to mean that PPE should be provided to workers wherever there are health or safety risks that cannot be adequately controlled or mitigated in other ways. If an employer does in fact provide PPE to their employees, they have a responsibility to train the workers in proper use, storage, cleaning, maintenance, limitations of the PPE. This extra stipulation for training adds cost and creates liability exposure to the employer.
Recently, the government of Ontario released a new COVID-19 Toolkit in order to assist employers create adequate workplace safety plans. PPE is not a mandatory aspect of COVID-19 safety plans, and the Government website specifically states, “PPE should only be used after other controls have been carefully considered and all feasible options implemented.” That being said, the site also specifically states that “face coverings” which are recommended by Public Health are not considered PPE.
PPE has become a generalized term encompassing anything looking like a face covering such as non-medical face masks, cloth masks, non-medical gloves, etc. In fact, proper PPE in a medical context includes medical grade products used in certified manner.
The Workplace Safety and Prevention Services which is a non-profit that works with Ontario workplaces and within the Occupational Health and Safety Space has COVID-19 specific bulletins for many industries which can be found here.
With regard to the general obligations of employers to provide face masks to employees, unless otherwise specified by a specific industry or regulation (health services for example), it does not appear to be mandatory to provide face masks to employees. However, the OHSA is broad in its requirements to “take every precaution reasonable in the circumstances”. Given the advice of public health, in an abundance of caution and to avoid liability every step should be taken by the employer to reduce risk. This may include providing masks. In our opinion, the same would be true in respect to face shields.
The employer needs to assess the mitigation of other measures taken in the workplace and determine if masks are an advisable part of the protective measures that should be taken. For example, if workers by necessity work in close quarters with each other or with clients or customers, nearer than two meters, then face masks likely should be provided to them to add to their safety in the workplace. However, if other measures provide for adequate protection through physical distancing, adequate ventilation, no-contact service provision, adequate sanitization, etc., then it may not be advisable to provide face masks or shields. Bear in mind, that if face masks or shields are provided, the employer bears as well the burden of properly training its employees in the use of such equipment.