On 24th September 2020, rules that were previously seen to be advisory regarding face coverings at work became enshrined in law.
It is now compulsory to wear face coverings at work for certain roles and indoor places, such as shops or cinemas. The change was brought in by the government following scientific evidence that Covid-19 is spread by droplets from sneezes, coughs, whilst talking and even singing. It is thought that face coverings act as a preventative measure, protecting others as opposed to the wearer themselves.
But with the heralding of new rules comes a range of potential problems for employers and a raft of questions, such as: what is my duty towards employees and visitors; what are my health and safety obligations; how do I enforce the wearing of face coverings at work; and what if people refuse?
What are the new rules on face coverings?
It is a common misconception that a face covering must be a mask. It can be anything that adequately and safely covers an individual’s mouth and nose, including:
- Scarves
- Bandanas
- Religious garments
- Handmade fabric masks
- Disposable or reusable face coverings
The fine for not wearing a mask or face covering ranges from £200 (reduced to £100 if paid within a 14-day period) for a first offence or up to £6,400 for repeat offending. It is important that you check local rules and guidance on the wearing of face coverings because different areas within the UK have different rules. However, basic guidance currently includes the following:
- Public Transport (trains, trams, buses, taxis) – In England, Scotland, Wales and Northern Ireland, the rule is that anyone travelling on public transport must wear a face covering.
- Transport workers are exempt from this requirement and are not required to wear face coverings at work, although there is advisory guidance that workers may wish to do so in areas where social distancing is problematic.
- Air Travel (including airports) – in England, Scotland and Wales face coverings are compulsory for passengers whilst boarding the plane. In Northern Ireland they are simply a recommendation.
- Supermarkets, shops and shopping centres – in all parts of the UK face coverings are mandatory.
- Other indoor spaces (for example, soft play areas, estate and letting agents, post offices, banks, and building societies) – in most indoor settings across the UK, face coverings are mandatory, this includes all shops, takeaway food outlets, places of worship, museums, libraries, cinemas and community centres. Where you are entering restaurants, bars/pubs and cafes, face coverings must be worn until you are safely seated at your designated table. In Wales and Scotland there is a requirement to wear a face covering in gyms. However, in Northern Ireland in businesses where appointments or a ticketing systems are used such as hairdressers or the cinema, there is no requirement to wear a face covering providing social distancing can be maintained.
General guidance – the government states that where social distancing cannot be maintained or people come into close contact with others who are not from the same household who don’t normally meet, then face coverings should be worn.
Exemptions to the face covering rules
The government website gov.uk provides a non-exhaustive list of people who do not have to wear face coverings. There are numerous reasons why people cannot wear face masks, for example, they may suffer from a physical or mental illness. You should refrain from demanding personal medical information from such individuals. Children under the age of 11 (13 in Northern Ireland and 5 in Scotland) are also exempt.
Are face coverings at work mandatory?
There is a pre-existing and ongoing legal responsibility for employers to provide a safe workplace for its employees, both before, during and after the Covid-19 pandemic.
There are a number of sectors where employees must wear face coverings at work, these include, retail environments, hospitality and leisure settings where employees are more likely to come into contact with a greater number of members of the public than someone, say, who works in an office.
Essentially, where there are any customer-facing roles in restaurants, banks and building societies, cafes and other venues, wearing a face covering is mandatory. If there is some sort of barrier, such as a Perspex or plexiglass screen between the employee and the customer, the employee behind the barrier does not have to wear a mask.
General government guidance encourages workplaces to consider the following as a bare minimum:
- Where possible maintain social distancing – impose a 2-metre rule where possible and make use of barriers or screens
- Maintain high standards of hand hygiene (including increased handwashing for at least twenty seconds and encouraging the frequent use of hand sanitizer), supply anti-bacterial wipes for equipment and surfaces
- Signage displaying that you have complying with government guidelines
- Consider designating separate entry and exit points
- Increased surface cleaning – focussing on high touch areas, such as door handles.
- Creating fixed team bubbles where if one person shows symptoms or tests positive for coronavirus, you can ask the bubble to isolate as opposed to the whole workforce where they have been in contact with the affected person
- Consider closing staff canteens or other shared space, such as staff rooms
Limiting the number of employees entering confined spaces such as stock rooms or lifts - Consider implementing a one-way system
Do employers need a policy for face coverings?
Employers have a responsibility to ensure the health and safety of their employees and any visitors to company premises. They also have to comply with government regulations and update it as government guidance changes in response to the pandemic.
The Health and Safety at Work Act 1974 sets out employer’s key responsibilities:
- Employees must be provided with training, information, and supervision necessary to allow them to work safely
- Keep workplace areas that are under the employer’s control well maintained, ensure it is safe and that there are safe routes for access and exit
- Provide adequate facilities for employee’s welfare and a safe working environment
- Maintaining safe plant and work systems
- Ensure that corrosive or dangerous substances are used safely and that they are stored and transported in a safe manner
- Draft and regularly review and revise a written health and safety policy, make sure employees know where it can be referred to and of any changes made
- Employees should not be charged for anything that ensures compliance with health and safety laws.
There are also a number of regulations and approved codes of practice that cover workplace health and safety, one of these – the duty to carry out risk assessments to identify any health and safety risks and the duty to take reasonable steps to remove or reduce those risks are particularly relevant when establishing or adapting a work plan that places the safety of your workforce at the forefront of policy.
Back in May, the government produced what they called a ‘Roadmap’ to ease lockdown restrictions. The roadmap included guidance for employers detailing a number of steps they should take in order to reopen their businesses and to prepare for their employees return to the workplace.
As part of that, employers should have carried out a Covid-19 risk assessment. Failure to have done so could result in a breach of health and safety legislation. You are required to consider the risks associated with features unique to your premises and the way in which you carry out business and the take measures to alleviate, as much as possible, those risks.
It is understood that it would be impossible to remove every single Covid-19 risk, but you must show that you have done what is ‘reasonably practicable’ and have shared the risk assessment with your workforce.
Once the risks have been established you should revise and revisit your policy on a regular basis and adapt it when required to do so by new or additional government guidance.
What can I do if an employee refuses to wear a face covering at work?
You may have identified as part of your risk assessment that face coverings is a necessary measure in order to adequately protect your employees and visitors to your premises. To comply with your general duties of care it is important to monitor employee compliance and in the event they are flouting the rules, intervene quickly and decisively.
Employers will be vicariously liable for any negligence on the part of their employees, this means that you could be liable if an individual’s health and/or safety has been damaged as a consequence of an employee’s failure to wear a face mask.
It may be wise to think about devising a special process that deals with health and safety measures that are not being properly observed. It may well be that after an investigation has taken place disciplinary action will follow.
There is a very fine line to tread when dealing with enforcing such policies and you should proceed with caution when attempting to impose a blanket regime. You want to avoid unlawfully discriminating against employees who have a legitimate reason for not wearing a face covering. It is also important to make reasonable adjustments for disabled workers, which might include letting an employee forego wearing a face mask.
What if visitors or customers refuse to wear a face covering?
Government guidance states that in places where face coverings are required, ‘reasonable steps should be taken to promote compliance with the law’. However, where someone is refusing, without good reason, to wear a face covering responsibility for removal of that person from your premises is down to the police or public transport police and not your employee.
Visitors and customers may be exempt from wearing a face covering and whilst some people may be comfortable explaining their reasons for not wearing a mask, others may not be as accommodating. It is not a legal requirement to explain or show evidence of proof of the exemption and people should be taken at their word and not interrogated as to their non-compliance.
Obviously, this raises important questions as to what employers should do to mitigate the risks for their employees in this instance. You may want to consider whether there is any additional protection you can put in place as part of your duty to protect employees, which will probably be individual to your premises and business sector.
Dealing with abusive behaviour
If you are expecting your employees to enforce the wearing of face coverings by customers and visitors then you will need to ensure they are protected from any potential abuse. By failing to deal with the abuse of your employees you may find yourself in breach of the implied term of mutual trust and confidence which may lead to a claim for constructive dismissal or even breach your duty of care to protect your employee’s health and safety.
Practical measures to deal with the problem might include providing training, displaying posters warning customers there is a zero-tolerance policy towards harassment or violence in place, or where exempt employees are open to abuse for not wearing a face covering themselves, discuss if they would find it helpful to wear an exemption badge.
Legal disclaimer
The matters contained in this article are intended to be for general information purposes only. This article does not constitute legal advice, nor is it a complete or authoritative statement of the law, and should not be treated as such. Whilst every effort is made to ensure that the information is correct, no warranty, express or implied, is given as to its accuracy and no liability is accepted for any error or omission. Before acting on any of the information contained herein, expert legal advice should be sought.
Author
Anne Morris is the founder and Managing Director of DavidsonMorris. A highly experienced lawyer, she is recognised by Chambers & Partners and the Legal 500 UK as a trusted adviser to multinationals, large corporates and SMEs, delivering strategic immigration and global mobility advice. Anne is also an active commentator on UK immigration and HR matters.
