During this pandemic, certain employers will consider adopting a policy on using personal protective equipment, such as gowns, gloves, masks or even facial protection. For certain people, adopting such a policy may have the effect of encroaching on their religious rights and protecting their own health and safety or that of other workers. In such a situation, can a worker be exempted from a policy requiring that this type of gear be worn?
Singh c Montréal Gateway Terminals Partnership
According to the facts in this case, the employer had implemented a policy requiring, in particular, that truck drivers wear a protective helmet when circulating outside the trucks, to deliver and pick up containers.
Truck drivers of the Sikh faith who wear turbans appealed to the court, requesting exemption from this policy.
The Superior Court concluded that the policy was discriminatory because it breached Sikh truck drivers’ right to religious freedom, but that this breach was justified. The primary objective was to ensure the safety of the workers and it was necessary to implement such a policy.
The Court of Appeal, having to determine, inter alia, if the breach of the right to religious freedom was proportionate to the purpose of the policy and if it constituted a minimal breach of that freedom, upheld the Superior Court’s decision. More specifically, the Court of Appeal reached the following conclusions:
- The Superior Court was well founded in its conclusion of the existence of a rational connection between the policy and the objective sought by the employer. It emphasizes that this situation must be differentiated from the Multani decision (in which a policy prohibiting the wearing of a kirpan was in issue), particularly due to the risk of injury to the head that was not just theoretical, but real;
- The evidence presented at trial supported the finding that the policy minimally compromised the religious freedom of truck drivers of the Sikh faith, particularly due to the brief period spent outside the trucks, wearing the protective helmet, the industrial environment in which the employer was operating, the legal framework to which the parties were subject in terms of occupational health and safety or even the attempt to accommodate, which had already been made;
- The trial judge did not commit a reviewable error in the weighting of the harmful and beneficial effects, because the objective of safe workplaces prevailed over the temporary adverse impacts on the religious freedom of truck drivers of the Sikh faith.
Although the decisions handed down in this case were not in the context of the current pandemic, the principles of interpretation discussed by the Court of Appeal in its decision will make it possible to determine within what limits employers can impose wearing various protective equipment.
It is important to bear in mind that the employer must have a real concern as to the health or the safety of the employees in its facilities when it decides to adopt a policy likely to breach fundamental rights and that the protective measures must achieve a clear objective and be necessary to achieve that objective.