A - Z. SIMPLE. EVERYTHING YOU NEED TO KNOW ABOUT NEW MANDATORY NON-MEDICAL MASKS IN THE CKL FOR BUSINESSES, INCLUDING ENFORCEMENT, REPORTING, MANAGING CONFLICT AND PENALTIES FOR NON-COMPLIANCE.

When Must I Wear A Non-Medical Mask?

Under instructions issued by the local Medical Officer of Health (the “MOH”), area businesses will have to have a policy in place that requires people to wear a non-medical mask or face covering before entering their commercial establishment. 

This applies to all owners and operators of commercial establishments currently open during Stage 2 of the province’s reopening.

The instructions have been issued under the authority of Ontario Regulation 263/20 under the provincial Emergency Management and Civil Protection Act (EMCPA).

When?

The requirement for non-medical mask or face covering use within local businesses will come into effect at 12:01 am July 13, 2020.

The use of masks will be required while the provincial Emergency Order remains in force or until such time that the MOH lifts the requirement.

What Businesses Does This Apply To? What Is An Establishment?

Under the Health Unit’s instructions, commercial establishments are premises that are openly accessible to members of the public and used for the purposes of offering goods or services for sale.

An establishment would include a mall or other structure containing commercial premises, including: retail stores, convenience stores, restaurants, personal services settings, grocery stores and bakeries, gas stations, indoor farmers’ markets, areas of mechanics’ shops/garages/repair shops, which are open to the public.

Who Does This Apply To?

If you own or operate a commercial establishment currently operating under Stage 2 of the provincial reopening, you must have policies in place to stop people from entering your establishment if they are not wearing a non-medical mask or face covering.

What If I Refuse?

Every operator of an enclosed public space will have a policy to ensure that no member of the public is permitted to enter or remain in the public areas of the enclosed public space unless they are wearing a mask in a manner that covers their nose, mouth and chin.

People in an enclosed public space who remove their mask for extended periods of time, will receive a verbal reminder of the requirement to wear a mask under these instructions.

The policy of the commercial establishment should be enacted and enforced in ‘good faith’ and should be used as an opportunity to educate about the use of non-medical masks or face coverings in indoor commercial establishments. Additional education and enforcement will be conducted by Health Unit staff, as well as local municipal bylaw and police officers.

Who is Exempted?

There are exemptions to the policy and a person will be exempt from wearing a non-medical mask or face covering in the premises if:

  • the person is a child under the age of two years; or a child under the age of 5 years either chronologically or developmentally and he or she refuses to wear a face covering and cannot be persuaded to do so by their caregiver;

  • the person is incapacitated and unable to remove their mask without assistance;

  • for any other medical reason, the person cannot safely wear a non-medical mask or face covering such as, but not limited to, respiratory disease, cognitive difficulties or difficulties in hearing or processing information; and

  • for any religious reason, the person cannot wear a non-medical mask or face covering or cannot cover the face in a manner that would properly control the source.

How Do I Make or Choose the Best Mask For Me?

In choosing a non-medical mask, ensure it is:

  • made of 2+ layers of tightly woven fabric (such as cotton or linen);

  • well-fitted with ear loops or ties;

  • a comfortable fit against your face and allows you to breathe easily without having to adjust it;

  • large enough to completely cover the nose and mouth without gaping; and

  • durable to allow you to frequently wash and dry it without losing its shape.

Other options for non-medical masks include wearing a bandana or scarf, or making one out of a T-shirt or a bandana.

The Public Health Agency of Canada also offers instructions on how to make a homemade face coverings.

Can a Business Refuse to Serve Me If I Refuse to Wear as Mask?

The implementation of the policy should be enforced in “good faith” and any person not wearing a mask will receive a verbal reminder from the staff of the establishment.

However, any commercial establishment can also assert Ontario’s Trespass To Property Act, RSO c. T.21 to disallow entry of any person who refuses to wear a non-medical mask – notice should initially be given to the person. 

In addition, business owners have a right at common law to exclude entry to any person who fails to lawfully comply with a health directive or order. 

How Will This Be Enforced?

Every owner/operator of a commercial establishment will have a policy to ensure that no member of the public is permitted to enter or remain in the public areas of the enclosed public space unless they are wearing a mask in a manner that securely covers their nose, mouth and chin.

Employees and operators will provide a verbal reminder to any customer entering the premises without a mask that the customer should be wearing a mask as a result of this directive.

Implementation of the policy will be enacted and enforced in ‘good faith’ and will be primarily used as a means to educate people on mask use in public spaces.

Public Health Inspectors from the HKPR District Health Unit, as well as municipal bylaw and local police officers will be involved in providing additional education and enforcement to operators of commercial establishments.

However, any commercial establishment can also assert Ontario’s Trespass To Property Act, RSO c. T.21 to disallow entry of any person who refuses to wear a non-medical mask – notice should initially be given to the person. 

In addition, business owners have a right at common law to exclude entry to any person who fails to lawfully comply with a health directive or order. 

Will Fines Be Levied for Non-Compliance? What Is The Penalty?

As noted above, implementation of the policy will be enacted and enforced in ‘good faith’ and will be primarily used as a means to educate people on mask use in public spaces.

As per Ontario’s Emergency Management and Civil Protection Act, those businesses that do not comply with the instructions may be liable for a fine of $750 to $1,000 for an individual, to a maximum of $100,000, or in the case of a corporation, not more than $10,000,000 for each day or part of each day on which the offence occurs or continues.

Can I Ever Remove My Mask In Public?

Members of the public are permitted to temporarily remove a mask for the following reasons:

  • receiving services (including eating or drinking when dine-in services are allowed), or

  • while actively engaging in an athletic or fitness activity including water-based activities.

Ensure you wash your hands using soap and water or an alcohol-based hand sanitizer before and after removing your mask or face covering.

Do I Report Local Business Not Requiring Customers to Wear Masks?

Yes.

For more information on the Health Unit’s instructions to commercial establishments to require the use of masks by patrons, or to report a non-complying business, call the Health Unit toll-free at 1-866-888-4577, ext. 5020.

How Do I Properly Use a Non-Medical Mask?

In choosing a non-medical mask, ensure it is:

  • made of 2+ layers of tightly woven fabric (such as cotton or linen);

  • well-fitted with ear loops or ties;

  • a comfortable fit against your face and allows you to breathe easily without having to adjust it;

  • large enough to completely cover the nose and mouth without gaping; and

  • durable to allow you to frequently wash and dry it without losing its shape.

Other options for non-medical masks include wearing a bandana or scarf, or making one out of a T-shirt or a bandana. The Public Health Agency of Canada also offers instructions on how to make a homemade face coverings.

Do Even Workplace Staff Have to Wear Masks In the Business

Yes. Staff are to wear masks when they are in those portions of a fixed commercial premises that are openly accessible to members of the public and that are used for the purposes of offering goods or services for sale to members of the public.

They are not required in lunch rooms, storage areas, prep areas etc. The areas of a commercial establishment that are subject to the non-medical mask and face covering requirements of these instructions are:

- any areas in which customers interact with one another or with staff members; 
- any areas that are open or accessible to members of the public; and 
- except where: the area is outside, whether or not the area is covered (e.g. a restaurant patio). 

What Should All CKL Commercial Businesses Now Do?

To comply with this new law, and with employer obligations under Ontario’s Occupational Health and Safety Act, employers should review these requirements and any other provincial or municipal directives to ensure they are following the latest safety requirements.

Businesses in the CKL should now:

  • create and post a written mask policy for the establishment;

  • communicate this new policy to staff and customers - post is prominently in your business/workplace;

  • train your staff on the policy, including when staff and customers must wear a mask or face covering, what to do if a customer refuses to wear one, and who is exempt from wearing one; 

  • verbally remind all attendees/customers who enter without a mask that they are legally required by order of the local Health Unit - avoid confrontation with customers by contacting the Health Unit for assistance; and 

  • post signs at all entrances reminding everyone to wear a mask.

The Health Unit will consider the above steps, if followed, as discharging your "good faith" and "best efforts" responsibility for his new legal obligation. If any conflict arises, attempt to distill and avoid, including by contacting the Health Unit for guidance and direction.  

Face masks and coverings do not replace the need to keep a distance of two metres or six feet from others, wash hands often, and stay home when sick.

Employees should continue to work from home if possible.

For more information about the instructions requiring non-medical mask use or face coverings, visit the Health Unit’s website at www.hkpr.on.ca or call toll-free at 1-866-888-4577, ext. 5020.

What About Professional Offices or 'By Appointment Only' Businesses

Establishments that do not fall under the definition of a commercial establishment are: schools, child care centres, business offices that are not open to members of the public, professional offices where clients receive purchased services (e.g., lawyers’ offices) that are not open to members of the public, hospitals, independent health facilities and offices of regulated health professionals.

Do I Have to Supply Customers With Masks

This is not legally required, but not having a mask is not a valid 'exemption' so it may be to the benefit of the business to have masks for these circumstances.

So, have masks available to those who do not have one.
 

Can I Use Only a Facial Shield Instead

Face shields are not equivalent for source protection to non-medical masks. Face shields should only be considered as an alternative for those staff that are not able to tolerate masks due to age or a condition of some kind.

Is It Okay To Simply Hide Behind a Hygiene Screen

No. Masks must be worn by staff when in areas used by the public.

Formal Directions to “Commercial Establishments”

The Health Unit’s letter to all “commercial establishments” is here: https://www.hkpr.on.ca/wp-content/uploads/2020/07/Commercial-Establishments-EMCPA-July-2020.pdf

MOH’s Fact Sheet

The Health Unit’s “Fact Sheet” for this new directive is here: https://www.hkpr.on.ca/wp-content/uploads/2020/07/HKPR-COVID-factsheet-Mandatory-Non-Medical-Masks.pdf

Video – How To Use a Non-Medical Mask

A video about how to use a non-medical mask properly is here: https://www.youtube.com/watch?v=lc1mqyPCOpo&feature=youtu.be

Posters For Your Business

Posters to prominently post in your workplace/business are available here: https://www.hkpr.on.ca/wp-content/uploads/2020/07/HKPR-COVID-poster-Protect-Yourself-Wear-A-Mask.pdf

Need a Written Mask Policy

Give us a call - we'll set you up in no time.  


Thank you for reading this - Jason Ward, Broghan Dean, Calvin Chan of WARDS LAWYERS PC.

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This WARDS LAWYERS PC blog is for general information only. It is not legal advice, or intended to be. Specific or more information may be necessary before advice could be provided for your circumstances.

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