Can (and should) employers mandate masks once restrictions are lifted?

8 Jul 2021 By Caitlin Powell

With lockdown in England potentially easing in less than two weeks, HR and employment law experts offer advice on face coverings in the workplace

Many employers face multiple dilemmas on 19 July if the promised lifting of the final coronavirus restrictions happens as planned – a significant one of which is whether employees and customers will still be required to wear face coverings indoors once they are no longer mandatory.

The World Health Organization has still advised that masks should remain mandatory on public transport, in shops and in crowded places, however as part of the final lifting of restrictions in England expected later this month, the government will end its mask mandate and instead suggest individuals decide for themselves when it’s appropriate to cover up.

For businesses, the key issue will always be to protect the health and safety of staff, says Paul Seath, partner in the employment department at Bates Wells, and this means following applicable guidance. But, he cautions, firms planning to impose masks at work after 19 July (if the changes go ahead) will need to have a “good reason” for the requirement, he warns.

“This [good reason] is often fact specific and so thought needs to be given to why,” he explains. “Factors you can take into account would include the views of staff and also the views of customers or service users.”

Seath advises that a genuine dialogue with staff is “critical”, and says employers will need to talk to staff about these issues before planning to impose masks in the workplace.

Nick Wilson, director of health and safety services at Ellis Whittam, also says employers will not be able to require workers to wear masks after the legal obligation is lifted. “If it was [an item of personal protective equipment] the employer could require employees to wear it as their risk assessment would stipulate that PPE must be worn for certain activities or locations, but it isn’t PPE.”

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But, he says, if employees want to continue the use of masks in the office then a “reasonable employer” would support that decision. “It’s about winning the hearts and minds of staff and having been told for the last 12 months to wear them and suddenly announce that you no longer have to, you can imagine there will be some unease.”

However, regardless of the rule change, Rachel Suff, senior policy adviser for employment relations at the CIPD, says employers need to continue carrying out Covid-secure risk assessments and supporting employees who wish to continue to wear a face covering.

“Although wearing face coverings will no longer be legally enforceable, some employers in certain settings such as those that are customer-facing like hospitality are likely to want to continue to require employees to wear them,” she explained. “They should consult and engage with their workforce in developing such a policy.”

Suff also advises that while employers may be able to leave some matters to individual employees’ discretion, they may still want to consider enforcing some protective discretion such as ventilation and masks for staff working in crowded places.

Kate Palmer, HR advice and consultancy director at Peninsula, also says businesses will still be free to carry on with social distancing and other safety measures – including mask wearing – after 19 July if they choose.

Employers should “consider their position carefully, balancing business needs with employee safety”, she explains. “Whatever their decision, they should be able to clearly explain how this decision has been reached, showing that they are keeping the safety of their staff at the forefront of their minds.”

If someone objects to wearing a mask – or objects to someone else wearing a mask where it is voluntary – employers should manage those complaints on an individual basis and take into consideration the specific position of the employee involved.

“It would be advisable to have a policy covering the wearing of face masks, or to amend an existing policy to reflect the fact that the context has changed, so that employees know where they stand,” she says.

While the relaxation of restrictions on face masks and general Covid regulations is a “positive move” for retail, adds Chris Brook-Carter, chief executive of the Retail Trust, he warns this could also create more uncertainty for businesses, shop workers and shoppers in the weeks ahead.

“We would all welcome more guidance from the government on when face coverings should be worn [as] this will ensure that businesses make the best recommendations for their staff and customers,” he says.

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