Wearing non-medical masks or face coverings can be an added public health measure for containing the spread of COVID-19. To date, the Government of Ontario has not implemented a province-wide mandatory face covering requirement due to the substantial variation in the severity and impact of COVID-19 in different geographic regions. Instead, it has relied on the discretion of individual public health units and municipalities to determine whether to order or direct that mandatory face coverings be worn in indoor public spaces and the scope of such restrictions. This has resulted in the implementation of a range of face covering requirements across the province depending on the assessed level of COVID-19 risk in a given municipality or health unit.
Authority to Direct Use of Masks or Face Coverings
To date, Medical Officers of Health of public health units across the province have imposed face covering requirements in one of two manners:
- Orders issued pursuant to Section 22 of the Health Protection and Promotion Act (“HPPA”)
- Instructions and Directives issued pursuant to Subsection 4(2) of Regulation 263/20 (Stage 2 Closures) under the Emergency Management and Civil Protection Act (“EMCPA”)
In addition to public health Orders, Instructions and Directives, several municipalities across Ontario have passed mandatory face covering By-Laws pursuant to their authority under the Municipal Act, 2001.
While they exist under various legal authorities, the directions are all similar in that they require individuals to wear face coverings in certain establishments and public indoor spaces. They also impose obligations on operators of those establishments, as set out below.
1. Medical Officer of Health Instructions and Directives
The most common approach taken by Medical Officers of Health has been to impose face covering requirements through the issuance of Instructions or Directives to owners and operators of establishments pursuant to Regulation 263/20 under the EMCPA. Regulation 263/20 requires that in order for a specified establishment to open, the person responsible for that business or organization must operate in compliance with the advice, recommendations and instructions of public health officials.
Requirement for Businesses to have a Policy
While they differ, the Instructions and Directives issued to date generally require owners and operators of specified establishments to:
- ensure the use of face coverings by persons entering the premises
- have a policy in place to prohibit prescribed persons from entering the premises without a face covering
- enact and enforce the policy in “good faith” and as a means or opportunity to educate on mask use in premises where physical distancing may be a challenge
- recognize that individuals may be exempt from wearing a face covering in certain circumstances, for example, if wearing a face covering would inhibit the person’s ability to breathe or for other medical reasons
- post appropriate visible signage indicating that face coverings are required inside the premises
- ensure that all employees are aware of the policy and are trained on the establishment’s expectations
It is important to note that the establishments to which various Instructions or Directives apply differ among health units. Instructions or Directives may contain exemptions for certain types of establishments (for example, hospitals, offices of regulated health professionals, schools, day cares, day camps, etc.) or they may apply more broadly. Owners and operators should carefully review the Instructions or Directives that are applicable in their region as well as any other guidance issued by their local health unit to ensure compliance.
Notably, some Instructions provide for enforcement of face covering requirements on a best efforts basis only. The definition of “best efforts” varies among health units, but generally includes a verbal reminder by the establishment to persons without face coverings or who remove their face covering for an extended period. It does not require that the establishment turn away a person without a face covering.
Some public health units have included explicit enforcement provisions in their Instructions, while others have not. Certain Medical Officers of Health, for example, have indicated that there will be a progressive enforcement approach to compliance in partnership with other local provincial offences officers.
Nevertheless, the offence provisions under the EMCPA would apply to contraventions of Instructions and Directives issued pursuant the EMCPA and its regulations. Upon conviction of an offence, individuals may be liable to a fine of not more than $100,000 and for a term of imprisonment of not more than one year. Directors and officers may be liable to a fine of not more than $500,000 and for a term of imprisonment of not more than one year, and corporations may be liable to a fine of not more than $10,000,000 for each day or part of each day on which the offence occurs or continues.
2. Medical Officer of Health Class Orders
The second mechanism that Medical Officers of Health have utilized to require mandatory face coverings has been through the use of section 22 of the HPPA. Section 22 provides authority for Medical Officers of Health to make an Order in circumstances where a communicable disease exists, it presents a risk to the health of persons in the health unit and the requirements specified in the Order are necessary to decrease or eliminate the risk to health presented by the communicable disease.
Medical Officers of Health of certain health units (e.g. Wellington-Dufferin-Guelph, Grey Bruce) have issued class Orders applicable to owners and operators of commercial establishments (as defined in the Order) that prohibit persons from entering the establishment without a face covering. As with the Instructions and Directives, the content and application of these Orders varies between health units; however, unlike the Instructions and Directives, none of the Orders impose policy or signage requirements.
3. Municipal By-Laws
Section 11 of the Municipal Act, 2001 grants municipalities the power to enact By-Laws for among other things, the health, safety and well-being of persons. Many municipalities have passed By-Laws in response to COVID-19 requiring operators of public establishments to:
- adopt a policy prohibiting persons from entering or remaining in the establishment without a face covering
- post signage regarding the face covering requirement
Contravention of a municipal By-Law constitutes an offence. Upon conviction, an individual is liable to a fine or other penalties as provided for under the Municipal Act, 2001 and the Provincial Offences Act.
With public health authorities and municipalities taking different approaches to mandatory non-medical masks and face coverings in indoor public spaces, all businesses and organizations are advised to carefully review the requirements that are applicable in their jurisdiction, including any specific guidance that has been issued. In many areas, this includes the development and implementation of an organizational policy, signage and staff training, in addition to the requirements of other public health guidelines that are already in place.
Miller Thomson continues to closely monitor measures being taken by all levels of government and public health authorities in response to COVID-19 to provide timely and appropriate support to clients in this rapidly changing environment. For articles, information updates and firm developments, please visit our COVID-19 Resources page.