Canada

Wear a mask or don’t board the bus, Transit Windsor rules

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Two work refusals by bus drivers have led Transit Windsor to stiffen its mask-wearing rule so that even passsengers claiming a medical condition must wear one.

“If you want to get transportation and you do not want to wear a mask, then you will have to seek alternate transportation,” said city engineer Mark Winterton.

The decision is the result of a union/management dispute that started with work refusals on Jan. 23 and 25. Although Transit Windsor has required passengers to wear masks throughout the current pandemic, an administration report going to council Monday says the drivers refused to work because some passengers refused to wear masks, citing medical conditions.

The drivers, the report said, believed “that patrons riding the bus without a face mask put the operator at risk of contracting COVID-19.”

A senior investigator from Employment and Social Development Canada’s labour program sided with the union and drivers, concluding that allowing passengers — even those with a medical condition — to not wear masks “constitutes a danger to employees.”

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Ontario Regulation 82/20 requires the use of face masks on public transit, the investigator noted. “However, there are exemptions provided for those who have a medical condition that inhibits their ability to wear a face mask or face covering.”

Transit Windsor, the investigator continued, believes it can’t legally ask a person for documented proof of a medical exemption — it’s a human rights issue. But without asking for proof, anyone could claim a medical condition and ride the bus maskless, “and expose the driver to aerosols or droplets coming from that person who may be infected with COVID-19.”

Even if the passenger produced medical documentation, the employee has a right to be protected from dangers in the workplace, the investigator said.

The investigator also cited medical opinions from the Canadian Thoracic Society which states there is no evidence that wearing a face mask will exacerbate an underlying lung condition, and the Ontario College of Family Physicians which states “there are very few conditions that justify an exemption from wearing a face-mask for reasons of prevention.”

A Transit Windsor bus is shown in downtown Windsor on March 2, 2021.
A Transit Windsor bus is shown in downtown Windsor on March 2, 2021. Photo by Dan Janisse /Windsor Star

Transit Windsor appealed the Feb. 4 direction by the investigator to the Canadian Industrial Relations Board, arguing that refusing service to someone because of a medical condition contravened the Canadian Human Rights Act. It also asked to have the no-exception direction delayed until the appeal could be heard.

“The position of Transit Windsor in consultation with the legal department was that Transit Windsor could not refuse service to a patron who was not wearing a face mask or covering who identified they had a medical exemption, and there was a potential human rights violation present for refusing service to a person with a disability who was not able to wear a face mask or covering,” the administration report says.

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The board dismissed Transit Windsor’s request for a stay on March 22 for several reasons, including that the direction did not contravene human rights legislation. Transit Windsor then decided to withdraw its appeal.

“We kind of had competing legislations,” Winterton said Thursday. “This was human rights versus labour. We’re in a difficult situation so we supported our drivers and it was backed up by the Labour Canada investigator.

“It’s a challenging situation for us. We had our legal folks involved in this and basically we have to deal with the issue at hand, which is the labour work refusal situation.”

Winterton, whose responsibilities include Transit Windsor, said there has not been a human rights complaint as a result of the no-exemptions mask rule. If someone can’t wear a mask, they’ll have to find alternative transportation, he said.

“This is under the (Canadian) labour code so this is related to a worker situation. We also are looking out for the general public and our policy at transit is you must wear a mask on the bus.”

Attempts over the last several days to reach someone at Amalgamated Transit Union Local 616 were not successful.

Winterton said “thank goodness” the public have generally respected the City of Windsor mask-wearing rules. He said there has been a small number — between three and five — incidents on buses where passengers have refused to wear a mask.

“People for the most part are very co-operative and understanding the challenge we have during the pandemic and are working with us to make sure everyone is safe. Not only the workers, but passengers on the buses.”

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