January 28, 2021

Masks in the workplace

This post was written by: Ilinca Mardarescu

Tesco, Asda and Waitrose all announced last week that they will deny entry to shoppers not wearing face masks (unless medically exempt). No doubt more will follow.

Additionally, we have all seen an increase in police challenging individuals as to why they are not wearing a mask.  Government guidance does state that the police can take measures if members of the public don’t comply with the law in relation to wearing masks.  However, members of the public are not required to carry with them any specific form of medical exemption certificate.

Shops can refuse to allow an individual to enter a store (which is private property) as long as that refusal is not discriminatory in any way.  Businesses have been spending money on ensuring the workplace is safe and secure for those who work in them and they have a general duty to protect the health and safety of its own staff as well as members of the public.  But what about those employees who refuse to wear a mask in the workplace?

Employers will need to tread carefully in mandating the wearing of a mask.   Indeed, a blanket approach could lead to claims of discrimination.  Where there are genuine medical reasons why employees are unable to wear a mask, they cannot be forced to do so.  Employers should generally already know about any medical conditions affecting their staff. It is good practice to ask, at the commencement of employment, about any on-going medical conditions in order to be able to effectively protect the health and safety of all of its employees.   It is also a good idea to include a clause in the contract of employment requiring employees to keep an employer updated as and when their medical condition changes.

Difficulties arise when there is a need to balance the health and well-being of all staff against those of one or two.  The majority of employees may be happy to wear and mask and may expect others to do so around them – they may have their own vulnerable family to consider.  I should be noted that employees have the right not to be pressured or abused in any way if they are unable to wear a mask.  In such situations, open communication with all parties is paramount.  A conversation should be had with those unable to wear a mask and consideration given as to what other measures can be put into place.  This could include moving them to another part of the business which is quieter or has less contact with others, ensuring social distancing is possible, utilising other protection methods such as Perspex barriers and asking those employees who cannot wear a traditional mask to wear a face visor instead.

A full COVID policy should be put into place in all workplaces, covering what is expected of employees in terms of extra precautions and safety measures to be adhered to.   For any assistance with this or any employment-law related topic, please contact our Head of Employment, Ilinca Mardarescu