Posted on: Sep 29,2020
What is a face covering?
A ‘face-covering’ is anything that adequately covers the nose and mouth, including reusable or single-use face masks, scarfs, bandanas, religious garments, or hand-made cloth coverings.
The rules on face coverings are comprised of both legal requirements and government guidance. They have changed numerous times since the beginning of the COVID-19 pandemic and vary throughout the UK, but for the time being, include:
Who does not have to wear face coverings?
Only people who cannot put on, wear or remove a face covering because of a physical or mental illness or impairment or disability and children under 11 years old.
Should employees wear a face covering at work?
You are not required to wear face coverings (with some exceptions). This is because by law your employer is obligated to provide a safe working environment. To ensure your employer is adequately providing for that obligation, they have been encouraged to follow the government’s coronavirus workplace settings guidance that is relevant to their workplace.
While your employer should not encourage the precautionary use of PPE, and should not be relying on face coverings as a risk management strategy, they should support employees in their wearing of face coverings if they choose to do so.
What if you refuse to wear a face-covering after being asked?
An employer may identify as part of its risk assessment that face masks (and/or other forms of PPE) are one of the necessary measures to protect employees and visitors. In other cases, it will be mandatory for face coverings to be worn in the workplace (for example, type II masks for those working in close-contact services such as hairdressers, beauticians, tailors, and fashion designers, or PPE for those working in clinical settings). In either situation, your employer will need to take steps to ensure that the masks and/or PPE are provided and that you are using them appropriately.
Employers have an obligation to provide a safe work environment for employees, and general legal duties of care towards anyone who may be accessing or using their place of business.
Employers will be vicariously liable for the negligence of their employees, which means that an employer may be liable if someone’s health is damaged due to negligent disregard of health and safety rules. (In practice, however, it would be difficult for anyone to show that they contracted COVID-19 because of an employee’s failure to wear a face covering.)
Employers should consider setting up a special process for you to flag concerns that the health and safety measures are not being observed or are not working. This could include concerns that you or your colleagues are not wearing face masks or PPE when you have been directed to do so. In appropriate cases, after investigation, your employer may wish to consider taking disciplinary action.
Your employer should, however, be careful about introducing and enforcing blanket policies requiring employees to wear face coverings, as this could run the risk of unlawfully discriminating against people who have legitimate reasons for not wearing them. For example, it could be indirect disability discrimination to discipline an employee who suffers from asthma for not wearing face-covering if they are unable to do so because it would prevent them from breathing properly. Employers must also make reasonable adjustments for disabled workers, which might include allowing an employee with a valid reason to forego wearing a face covering.
There may be exceptional circumstances in which, having undertaken risk assessment, your employer will need to carefully manage how they apply policies in order to avoid discriminatory outcomes. In the above example of a person suffering from asthma, if your employer’s risk assessment has determined face coverings and/or PPE were mandatory for all staff, they would need to conduct a further risk assessment in relation to the asthmatic employee. It might also be, that your employer would then need to consider implementing additional measures as reasonable adjustments to accommodate any disadvantage suffered by an asthmatic employee: for example, providing a separate working area or other suitable work which could be undertaken remotely.
What if visitors and customers refuse to wear a face-covering?
There are certain settings in which members of the public are required to wear face coverings, as set out above, although this covers only a relatively small proportion of businesses. Under the government’s guidance, premises, where face coverings are required, should ‘take reasonable steps to promote compliance with the law’. That said, the responsibility for forcibly removing non-compliant visitors (who do not have a valid exemption) lies with the police or public transport officials.
Like employees, visitors and customers may have legitimate reasons for not wearing a face-covering (for example, on account of their age, health or disability). While some people may feel comfortable showing something to indicate this such as an exemption card, badge, or home-made sign, this is not necessary the law and the government guidance states that people should not be routinely asked to provide written evidence of this.
This raises quite difficult questions about what you should do in practice to manage the risks posed by visitors who do not comply with face-covering requirements. They may wish to consider whether there are ways to provide employees with additional protection in this situation, and whether and how they might seek to enforce compliance by customers as part of their duty to protect staff.
What are your employers’ duties to protect you from being abused over face coverings?
Face coverings have become rather a politicized issue in the UK people caught unmasked in public are frequently labeled ‘covidiots’, while the imposition of face coverings has been seen as an affront to personal freedoms.
This has unfortunately resulted in people being confronted or harassed over whether they wear a covering, including employees in the workplace. If your employer asks you to enforce the wearing of face coverings by visitors and customers, they will also need to take steps to protect you from any ensuing abuse.
Failure to deal with abuse of employees may be a breach of the implied term of mutual trust and confidence, which could lead to constructive dismissal claims, or a breach of the duty of care to protect employees’ health and safety. Where abuse by customers is related to an employee’s protected characteristics, such as disability, your employer should take account of the detailed guidance produced by the EHRC and respond robustly.
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