Legal

Can employers make masks mandatory?

21 Sep 2020 By Samantha Randall

Samantha Randall explains the rules around forcing employees to wear face coverings in the workplace

With many employees being encouraged to return to work and with growing pressure from the government on employers to bring staff back to offices, questions have arisen about whether wearing a mask should be mandatory in the workplace. 

An employer considering requiring employees to wear a mask should consider the guidance on face coverings for the particular type of work involved as part of its risk assessment. 

The Working Safely guidance (applicable in England) recommends that face coverings should be worn in some workplaces, such as close contact services, suggesting a clear visor that covers the face and provides a barrier between the wearer and the client. 

The guidance for offices and contact centres was updated in July to provide that it may be appropriate to wear face coverings (as opposed to masks) in some office settings where a two-metre physical distance cannot be maintained.

Given that they do appear to have some degree of protective benefit, if an employer offers them it may find that employees will agree to wear them. 

However, face coverings are not a replacement for other ways of managing risk. The most effective methods of preventing the transmission of Covid-19 remain social distancing, regular hand washing and cleaning, which must still be followed as much as possible.

Questions have also arisen about the provision of masks to staff, especially considering the potential cost involved. The guidance states that if a risk assessment shows that PPE is required it must be provided free of charge to workers who need it together with guidance on how to use it safely.

Given the nature of the request to wear a mask and the fact that it is likely to be unrelated to an employee’s duties, it is arguable that something more is required to put the obligation on a contractual footing. 

Employers may, therefore, decide to introduce the requirement to wear a mask as part of other policy changes it makes to reflect the new Covid-19 working conditions, or even introduce a contractual requirement if they feel it is needed. 

In some cases, an employee may refuse to wear a mask. Where it is related to a medical condition or a disability, these factors should be taken into account, especially if enforcement could amount to discriminatory behaviour. 

However, in other cases, where the failure to wear a mask amounts to a breach of contract (either an express term or the implied obligation to obey lawful and reasonable management instructions intended to protect health and safety) then the employer may as a last resort bring disciplinary proceedings in relation to the employee's refusal to cooperate.

The employer should consider the reasonableness of imposing sanctions if employees do not wear a mask against its health and safety obligations.  

The employer may be in a stronger position where the workplace is one in which it is difficult to maintain social distancing, but consideration would need to be given to whether masks are a proportionate way to address that risk, taking into account the employer's health and safety risk assessment. However, specific objections by an employee should be considered on a case by case basis. 

Before enforcing such policies, it may be beneficial to consult employees and their representatives to see what opinions are held. Employers should also consider taking legal advice before introducing such a policy to ensure they have taken all of the necessary steps.

Throughout these deliberations, businesses should remain aware that failing to provide a Covid-secure workplace could result in a fine and leave vulnerable staff members at risk.

Samantha Randall is an associate employment solicitor at Palmers Solicitors

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