Businesses can continue to require masks, but proof of vaccination is trickier

·4 min read
Businesses in New Brunswick can still require people to wear masks, even after the State of Emergency order is lifted at midnight on Friday.  (Evan Mitsui/CBC - image credit)
Businesses in New Brunswick can still require people to wear masks, even after the State of Emergency order is lifted at midnight on Friday. (Evan Mitsui/CBC - image credit)

To mask or not to mask, that is the question.

Unlike the last 10 months, businesses and individuals will have the choice as of midnight Friday, when the province will lift its state of emergency order.

But even without the order, businesses can still require customers to wear masks, explained Benjamin Perryman, an assistant law professor at the University of New Brunswick.

"Whether it's a mask in relation to the pandemic or the height of a person to go on a ride, or that you need to have a driver's license to drive a go-cart — provided that the rule is reasonable and not discriminatory, a business can set rules for their business that apply both to employees and the general public."

The provincial government, in a 13-page guide called, Living with COVID, says, "Businesses, communities, and organizations may choose to maintain a policy for patrons and participants who enter their premises to continue to wear a mask."

That's the easy issue facing business operators, said Perryman, who teaches constitutional law.

Submitted by Benjamin Perryman
Submitted by Benjamin Perryman

The difficult one is whether businesses can ask for proof of vaccinations. The answer, he said, includes a lot of "it depends."

It depends on whether a business is asking an employee or a patron, and why they're asking.

Even then, the answer isn't clear, said Perryman.

The law relies on precedents and case law, and is continually evolving as lawyers challenge how it is applied. Since the pandemic is new, Perryman said existing laws haven't been tested for pandemic scenarios.

Although a lawyer may not be able to provide concrete answers, Perryman suggests businesses check with a lawyer for guidance.

"A lawyer may not be able to provide as black and white an answer as the business wants, but what they will be able to do is walk the business through some of the right questions to ask."

According to WorkSafeNB, employers do not have the right to demand proof of vaccination of employees.

"However, employers may request vaccination status as part of their risk assessment," said Laragh Dooley, WorkSafeNB's executive director, corporate communications.

First excitement, then confusion

The CEO of the Saint John Region Chamber of Commerce said his members' first reaction to reopening is excitement.

But a close second is confusion, said David Duplisea.

Submitted by David Duplisea
Submitted by David Duplisea

He said business owners wonder what they're allowed to ask their employees and customers when it comes to vaccinations. Without a lot of clear guidance from the province, Duplisea said it's up to each business to decide what they're comfortable asking.

"Until we hear further confirmation on any operating guidelines or is it just wide open, then we're just going to continue and let businesses make their best judgment calls."

Going green with caution

The Charlotte Street Arts Centre in Fredericton announced that it plans to continue to require masks in common areas like the foyer, hallways and bathrooms.

The Centre's Facebook post said, "Overall, we will be easing into lessening restrictions in the centre as we have a lot of children under 12 and vulnerable community members in our space."

At the Imperial Theatre in Saint John, masks will be required in the lobbies, but can be removed once seated.

A release from the theatre says it "recommends, but does not require," that patrons be fully vaccinated. "For the safety and comfort of all patrons, we ask that those who are not vaccinated remain masked while they are in the theatre."


Walmart Canada said it is monitoring the lifting of restrictions across Canada and "will align with the updated mask expectations for our customers in those regions."

Employees, however, will continue to wear masks when interacting with the public. Otherwise, they will have the option of removing their mask at other times, and under certain conditions.

"For clarity, masks will continue to be mandatory for all associates when in public-facing areas as well as non-public- facing areas of these facilities where a minimum 2 metres of physical distancing cannot be maintained," said Walmart spokesperson Felicia Fefer by email.

Similar requests to Costco and Sobeys for details about how the changes will affect grocery and retail chains went unanswered by publication time.

The province's Living with COVID guidelines, suggests that businesses keep some of the protective measures in place, including Plexiglas and sneeze guard barriers. The guide also suggests maintaining signs that indicate traffic flow and separate entrances and exits.

And everyone is encouraged to continue to wash their hands often. It's suggested that business continue to provide hand sanitizer or hand washing facilities at all entrances and exits, as well as near often-touched surfaces such as elevators and check-outs.

The province is also encouraging businesses to continue regular cleaning and disinfecting of surfaces like doorknobs, handrails, and other frequently touched equipment, like shopping carts and baskets.

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