Wearing face masks in the workplace
The very necessary precautions needed to help prevent the spread of Covid-19 have been with us since March 2020. Should legislation be relaxed as anticipated post-19 July, it looks likely that the onus will be very much on the employer to have ongoing and visible control over the management of COVID-19 risks in the workplace, including the wearing of face coverings.
Employment lawyer Lucy Flynn looks at the surrounding issues.
It has been widely leaked that government ministers are poised to tell companies that employees can drop face masks, social distancing and other workplace measures put in place to minimise the spread of coronavirus.
Earlier this year, the catchily-titled Health Protection (Coronavirus, Wearing of Face Coverings in a Relevant Place) (England) Regulations 2020, which have been amended, added to and supplemented several times by various new statutory instruments and government guidance documents (“the Regulations”) stated that no person may, without reasonable excuse, enter or remain within a relevant place without wearing a face covering, unless that person falls within one of the exemptions, which includes children under 11, non-excepted employees acting in the course of their employment and elite sportspersons undertaking training or taking part in a competition.
Given that the majority of businesses employ neither children nor professional sportspersons, there had been a need to understand whether their employees will fall within the category of those exempt from wearing face coverings when returning to the workplace. However, it now seems that ministers are prepared to give companies greater discretion over Covid-secure arrangements, which is likely to be welcomed by those businesses preparing for a re-opening on 19 July 2021.
Having said that, it’s worth considering the February 2021 employment tribunal case of Kubilius v Kent Foods Ltd which concerned the dismissal of a lorry-driver employee, who refused to follow the instructions of a customer to wear a face covering on its site whilst in the cab of his vehicle. Mr Kubilius said he would wear a face covering on site when not in his vehicle, but when he was inside his cab, this was his space and there was no legal requirement for him to cover his face. The customer reported this refusal to Kent Foods Ltd, and banned Mr Kubilius from its site. Kent Foods Ltd dismissed Mr Kubilius summarily and without notice; not for the refusal to wear a face covering per se, but rather his refusal to follow the on-site rules of the customer. The employment tribunal decided that the dismissal was within the range of reasonable responses available to Kent Foods Ltd in the circumstances and that it was fair.
The Regulations tell us that employees acting in the course of their employment are exempt from wearing a face covering when working inside a relevant place, but the employment tribunal has ratified a recent decision of an employer who dismissed an employee for refusing to wear a face covering when there was no legal requirement for him to do so.
So, what is going to happen after 19 July?
Currently, employees and others providing services indoors at a relevant place are exempt from wearing a face covering unless they are:
– acting in the course of their employment or providing services; AND
– they are working in any part of a relevant place which is open to the public; AND
– they come or are likely to come within close contact of any member of the public.
Where an employee or service provider is provided with respiratory protective equipment (RPE) by their employer to meet any of the relevant statutory provisions as defined by section 53 of the Health and Safety at Work Act 1974 in respect of any tasks they are performing, that person will, in wearing that RPE, be treated as complying with the requirement to wear a face covering.
Additionally, where a business has taken steps to create a physical barrier between the worker and members of the public, there is no need for staff behind the barrier to wear a face covering.
Onus on the employer
However, should legislation be relaxed as anticipated post-19 July, it looks very likely that the onus will be very much on the employer to have ongoing and visible control over the management of COVID-19 risks in the workplace, including the wearing of face coverings.
Employers will still likely have to perform a risk assessment for their business which addresses the risks of COVID-19 to their staff and the public, to inform decisions and take control of the measures they will take including
– limiting close-proximity working
– social distancing
– high standards of hand hygiene
– increased surface cleaning
– fixed teams or partnering
– screens or barriers to separate people from each other
– provision of face coverings to be worn and clear guidance regarding when to wear it
Employers will also likely be expected to conduct regular and transparent workplace health and safety assessments regarding the use of face coverings on a case-by-case basis and depending on the workplace environment and whether exemptions or reasonable excuses apply.