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23 September 2020
What are the rules on face coverings?
Who is exempt from wearing a face covering?
Should employees wear a face covering at work?
What if an employee refuses to wear a face covering after being asked?
What if visitors and customers refuse to wear a face covering?
What are employers' duties to protect staff from being abused over wearing face coverings?
This article discusses the current rules regarding face coverings at work and some of the practical issues that may arise for employers.
At the end of August 2020 there were reports of a "debacle" on a flight from the Greek island of Zante to Cardiff, which resulted in 193 passengers and crew facing two weeks' self-isolation. The incident prompts several questions, not just for airlines but for employers generally about their responsibilities regarding face coverings, including the following:
A 'face covering' in this context is anything that safely covers the nose and mouth, including:
The rules on face coverings encompass both legal requirements and government guidance. They have changed several times since the start of the COVID-19 pandemic and differ throughout the United Kingdom, but currently include the following:
The government's guidance provides a non-exhaustive list of people who need not wear a face covering. This includes, for instance, 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 of age.
Employers have a host of health and safety issues to consider when establishing a safe return-to-work plan including what (if any) personal protective equipment (PPE) or face coverings they should provide to employees.
Although members of the public must wear face coverings on public transport and in certain indoor settings, this requirement does not extend to employees (with some exceptions – see below). This is on account of the existing legal obligation for employers to provide a safe working environment. In order to comply with that obligation, employers should follow the parts of the government's COVID-19 workplace settings guidance which are relevant for their particular type of workplace.
While employers should not encourage the precautionary use of PPE, and should not rely on face coverings as a risk management strategy, they should support employees in their wearing of face coverings (which are not PPE) if they choose to do so. Employers should also bear in mind the government's general guidance (above) that face coverings should be worn in indoor places where social distancing may be difficult and where people will come into contact with people whom they do not normally meet.
Employers may identify as part of their risk assessment that face masks (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 employer's business (eg, 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, employers must take steps to ensure that the masks or PPE are provided and that employees use 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 (eg, visitors or customers). To comply with these duties, employers must monitor how employees are behaving and intervene quickly if they are acting inappropriately.
Employers will generally 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 their employee's negligent disregard of health and safety rules. (However, in practice, 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 employees to flag concerns that the health and safety measures are not being observed or are not working. This could include concerns that colleagues are not wearing face masks or PPE when they are supposed to do so. In appropriate cases, after investigation, employers may wish to consider taking disciplinary action.
However, employers should be careful about introducing and enforcing blanket policies requiring employees to wear face coverings, as they could risk unlawfully discriminating against people who have legitimate reasons for not wearing them. For example, it could be indirect disability discrimination to discipline an asthmatic employee for not wearing a 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 their risk assessment, employers must carefully manage how they apply their policies in order to avoid discriminatory outcomes. In the above example of an asthmatic employee, if the employer's risk assessment had determined that face coverings or PPE were mandatory for all staff, it would need to conduct a further risk assessment in relation to the asthmatic employee. The employer may then need to consider implementing additional measures as reasonable adjustments to accommodate any disadvantage suffered by the asthmatic employee (eg, providing a separate working area or other suitable work which could be undertaken remotely).
There are certain settings in which members of the public must 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 have no 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 (eg, on account of their age, health or disability). While some people may feel comfortable showing something to indicate this (eg, an exemption card, badge or homemade sign), this is not necessary in law and the government guidance states that people should not be routinely asked to provide written evidence of this.
This raises difficult questions about what employers should do in practice to manage the risks posed to employees 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 visitors and customers as part of their duty to protect their staff.
Face coverings have become a politicised issue in the United Kingdom (although perhaps not to the extent that they have in the United States). People caught unmasked in public are frequently labelled 'covidiots', while the imposition of coverings was deplored by a libertarian sect of the Conservative party 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 their workplace. If employers ask their staff to enforce the wearing of face coverings by visitors and customers, they must also take steps to protect them from any resulting abuse.
Failure to deal with abuse of employees may breach the implied term of mutual trust and confidence, which could lead to constructive dismissal claims or a breach of the employer's duty of care to protect employees' health and safety. Where abuse by customers relates to an employee's protected characteristic (eg, a disability), employers should take account of the detailed guidance produced by the Equality and Human Rights Commission and respond robustly (for further details please see "Significant new guidance on harassment from EHRC").
Practical measures that employers could put in place include:
In relation to employees who are exempt from wearing a face covering, and who may be vulnerable to abuse for that reason, employers may wish to discuss whether they would find it helpful to wear exemption badges.
For further information on this topic please contact Shalina Crossley or David Lyons at Lewis Silkin by telephone (+44 20 7074 8000) or email (firstname.lastname@example.org or email@example.com). The Lewis Silkin website can be accessed at www.lewissilkin.com.
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