From 19 July 2021 it is no longer a legal requirement to wear a face covering in public places in England, for example, whilst in a supermarket or using public transport. However, despite this, the message coming from Government is that people should continue to do so. Significantly, Transport for London and some airlines, such as Ryanair, British Airways, Virgin and EasyJet have already stated that face coverings will still be mandatory on their journeys.
This article first appeared on the ABTA website and has been subsequently updated to include the latest on face coverings in the workplace as of 19 July 2021.
The announcement comes in the face of rising infection rates and the expectation of a third wave. However, more and more people are receiving their first and second COVID vaccinations and the Government has said that we need to learn to live with coronavirus. Given that being vaccinated does not stop someone becoming infected or passing the virus on account needs to be taken of those who have not had the jab or who have a low immunity.
Should employers require staff to wear face coverings to help protect others?
Face coverings are worn predominantly to protect others rather than the wearer in enclosed indoor spaces. Research suggests that whilst they help reduce transmission of COVID, they are not as effective as maintaining social distancing. Employers will therefore need to decide whether its staff (including agency workers and contractors) should be required to wear a face covering in the workplace and should carry out a risk assessment to determine what the risks are and what can be done to mitigate them. Some of the factors that employers may take into account include:
- Whether the place of work is indoors or outdoors;
- Whether the requirement should be applied equally to all staff or limited to certain areas/departments;
- Whether a requirement not to wear a face covering may lead to increased levels of anxiety potentially deterring staff from coming into work;
- Whether there are other safety measures that could be put in place instead of wearing face coverings to minimise the spread.
In addition, on 14 July the Government published an updated series of Guides on “Working safely during Coronavirus” which is applicable to England – please see our recent article for more details.
It is important for employers to communicate what working arrangements will look like from 19 July in relation to interacting with colleagues and customers. This should include explaining what risk assessments have been carried out and what measures will be in place to ensure a safe system of working, including how staff interact with customers. Employers should expect employees to have questions and concerns about returning and consider holding webinars or issuing a FAQ document.
If there is to be a rule or policy in place that face coverings need to be worn, then the employer should provide suitable face coverings and guidance on how to use them. Employers need to be mindful of any staff who are exempt from wearing face coverings, as forcing them to do so may be discriminatory. Introducing new rules or policies may also impact on other workplace policies and procedures, which should be reviewed and updated if required.
What if an employee refuses to wear a face covering?
If an employee refuses to wear a face covering at work when requested to do so then employers need to understand why and provide support and reassurance where appropriate. If there is no legitimate basis for the employee’s refusal or non-attendance then disciplinary action may be appropriate. In the recent case of Kubilius v Kent Foods a delivery driver was found to have been fairly dismissed for refusing to wear a face covering at the request of a client. Although he was dismissed when face coverings were not a legal requirement, the request to wear one was found to be a reasonable health and safety instruction. Each situation will, of course, turn on its own facts and what is fair in one situation may not be in another.
In contrast to the position in England, the Welsh Government has recently announced that face coverings will still be required by law in Wales in some settings, such as public transport and health and social care settings. The Scottish Government has said there will be an ongoing need for face coverings when other restrictions are lifted on 9 August and it is anticipated that they will still need to be worn whilst using public transport and visiting shops.
If you need legal advice on face coverings in the workplace or anything else pandemic related, get in touch with our employment lawyers.
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