Can HR fire an employee for refusing to wear a mask?

HRD spoke to David A. Whitten, senior partner at Whitten & Lublin, who revealed the answer

Can HR fire an employee for refusing to wear a mask?

COVID-19 is throwing up lots of new problems for employers - including concerns around health and safety, best practice, and terminations. As Government guidance continues to change and evolve to meet the expectations of the population, HR departments have to keep ahead of the game in order to stay lawful.

One of the main areas of contention in regards to COVID-19 updates is whether or not employees have to wear a mask whilst at work.

HRD spoke to David A. Whitten, senior partner at Toronto-based law firm Whitten & Lublin, who explained if an employee can be terminated for refusal to wear protective gear.

“Essentially, yes, if the employer has a clearly worded Health and Safety Policy which requires all employees to wear a mask,” Whitten told HRD. “The policy should make it clear that if an employee refuses, they'll be subject to discipline up to and including termination of employment.

“Alternatively, an employee can be progressively disciplined.”

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Progressive discipline occurs when an employee fails to correct a recurring problem, despite being given reasonable opportunity to do so.  

“In short, an employee who refuses to wear a mask can be fired in the same way that any other employee could be fired for not following health and safety guidelines.”

On the flip side, an employee in Sydney claimed she was fired because she refused to take her mask off. In February of this year, the worker identified as Tiffany, 24, said she opted to wear the mask during her shift at a retail shop in Sydney on 23 January, just as news of the contagion began to make international headlines.

Tiffany was asked to remove the mask – and when she refused, she was told to go home.

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“Having the lesson from SARS outbreak in my hometown, wearing a mask is the best way to protect myself from getting the disease,” she told Daily Mail.

“My job involves numerous face-to face contact with Chinese tourists and I have no idea where in China where they’re from… After a while, the boss was back in the shop and he asked me to take my mask off or go home. I didn’t seem to have much to choose from there. So, I went home.”

Tiffany then claims that she was removed from the work WhatsApp group, which she took to mean she has been fired.

Speaking to the media, her employer responded: “We told her she could take some time off [during the virus] and her job would still be here but she said no.”

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