As of today, new government directives come into force regarding the wearing of mandatory masks and physical distancing measures.

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Except for public transport, such as the plane, the bus or the train, or even health establishments, the obligation to wear a mask is abandoned, as is the obligation of physical distancing.

With regard to work, can the employer make it compulsory to wear a mask?

Yes, in principle

In principle, the answer to this question is positive, the employer being able to use his right of management to impose the wearing of a mask.

In addition, he may also rely on certain provisions of the Act respecting occupational health and safety (AOHS). Thus, the worker must take the necessary measures to protect his health and physical safety, just as he must not endanger the health of his co-workers (art. 49 AOHS). For his part, the employer must take the necessary measures to protect the health and physical safety of his workers (art. 51 AOHS).

But no carte blanche

Of course, the employer does not have carte blanche to impose the wearing of a mask at work. It must take into account the specific circumstances of each situation. If he acts otherwise, he could be accused of abuse of rights, the Civil Code of Quebec providing that "no right may be exercised with a view to harming others or in an excessive and unreasonable manner, thus going to the against the requirements of good faith”.

If we are in the presence of unionized workers, they could, if necessary, challenge their employer's decision in this regard, depending on the provisions of their collective agreement.

Certain specific situations could give rise to the obligation to wear a mask at work. We can thus think of workers whose tasks require the absence of distancing at all times. Or those who work directly with the public, again in situations where physical distancing is impossible: we can think of restaurant workers, others who receive customers and rub shoulders with them, etc.

Right of management

In summary, wearing a mask at work can remain mandatory, the employer then relying on its right of management and certain provisions of the OHSA, as well, it should be remembered, on medical recommendations from government agencies.

However, the right of management is not absolute and each situation must be subject to appropriate examination.

♦ Me Bernard Cliche, lawyer emeritus Morency law firm.