01 September 2021
In 2021, a mask is a necessity, not an accessory, but what does the law say about an employee who just says “no”?
Delta’s relentless march in Australia means many of our workers are adjusting to mandatory masks in the workplace for the first time since the pandemic began.
From those with a reasonable excuse to those who prefer to feel the wind on their face, the rights of employees and employers when it comes to wearing face masks in the workplace will be in a state of flux as COVID-19 outbreaks arise and are controlled.
The requirements for wearing masks arise from state and territory government public health directives, but currently, these directives constantly vary between states, cities and local government areas.
Multiple legal regimes also impact the issue, including:
Where an employee refuses to wear a mask for no valid reason, and there is a health directive or the equivalent in place to say they must do so, they can legally lose their job and even face criminal prosecution.
Even intentionally wearing a face mask incorrectly may breach work health and safety (WHS) laws and the applicable public health directive. In Queensland, for example, a face mask must “cover the nose and mouth at all times”.
However, employers must exercise caution when an employee raises a valid reason or ‘reasonable excuse’ for not wearing a mask. If the excuse is credible, the employer should consider alternative duties for the employee, along with unpaid leave or the use of accrued annual leave. If there is no practical solution, and depending on the nature of the workplace (for example, a worker in an aged care facility), an employee with a reasonable excuse may still legitimately face dismissal because they cannot fulfil the inherent requirements of their role.
The ‘winner’ between the employee and the employers competing rights may not always be so clear-cut, and many employers face a ‘Catch-22’ situation where they risk a discrimination claim from the employee on one side and a work health and safety prosecution on the other.
A face mask is like any other personal protective equipment (PPE) under WHS laws. In the absence of a specific health directive, whether an employer requires its employees to wear one will be a WHS consideration.
So far as is reasonably practicable, employers are required to eliminate (if possible) or minimise the risks to employees’ health and safety in the workplace.
To meet these obligations, employers are required to consider a range of control measures, and COVID-19 means that face masks are a legitimate, inexpensive and easily accessible control measure in most workplaces.
Where an employer chooses to provide its employees with face masks as a form of PPE in meeting its WHS obligations, the masks must be reasonably comfortable, suitable considering the nature of work and the risk of the hazard (i.e. COVID-19 transmission), and be of good size and fit. Ideally, an employer would have consulted with its employees about these matters when determining what masks will be provided.
Alternatively, an employer may be satisfied that the health and safety of its workers are ensured without providing face masks to its employees. Arguably, if workers are already using and wearing their own suitable face masks in the workplace according to a public health directive, an employer might choose to rely on this and other measures (e.g. social distancing within the workplace) to meet its WHS obligations.
The various public health directives’ exemptions recognise that there are legitimate circumstances where a person should not be required to wear a mask. In Queensland, some of these relevant exemptions include:
Similar exemptions exist in all the states, but the current rules around proof of exemptions do differ between jurisdictions. For example, in Queensland and Victoria, people with a lawful exemption do not need to carry a medical certificate or other evidence to prove that an exemption applies to them. However in NSW, if you cannot wear a face mask due to illness or disability, you are required to carry with you a medical certificate or statutory declaration that proves the exemption applies to you, and produce it to a police officer if requested.
Generally speaking, it is important to note that an employee does not need to provide their employer with a medical certificate or other documentation to prove that they have a lawful exemption. Even if an employer suspects an employee is being dishonest, it is important for the employer to take the claim seriously and consider it carefully. For example, the employer may find suitable alternative duties for the employee until the heightened risk has passed, negotiate a period of unpaid leave, or ask the employee to use their accrued annual leave.
Religious reasons (concerning facial hair, for example) can also be considered a reasonable excuse. When an employee raises ‘excuses’ such as these, it may be discriminatory to dismiss their concerns or discipline them hastily without taking their reasons into account.
As discussed above, an employee may have an illness, condition, or disability which makes wearing a face mask unsuitable. For example, psychological conditions such as anxiety or autism spectrum disorder may prevent a person from wearing a face mask.
Requiring someone to wear a mask when an exemption applies could amount to unlawful discrimination on the basis of disability or impairment. Factors such as the type of workplace and the current risk of infection will be taken into account, and most scenarios will need to be judged by employers on a case-by-case basis.
For example, masks are mandated for hospital staff and quarantine workers in Queensland and a direction to wear a mask in these workplaces is always a reasonable and lawful direction. Conversely, if a particularly risk-averse business decides to mandate masks (even though the law does not require it for their industry at that time), the direction may not be reasonable if an employee is dismissed for refusing to wear one.
In summary, there will be legitimate instances in which an employee refuses to wear a mask. Employers should handle these employees with care while ensuring their refusal does not cause the company to breach its WHS and public health directive obligations.
Face masks will be a feature of Australian life for the foreseeable future, and, at least in some industries, they are likely to outlive the public health directives that require them. That means employers should be vigilant in complying with their WHS duties while remaining open to ‘case-by-case’ solutions when dealing with the employee who refuses to wear one for legitimate reasons.
Holding Redlich are experts in employment and workplace relations law. If you have any employment law issues or concerns, please contact us.
Authors: Edmund Burke, Aiyana O’Meara & Ella Rooney
The information in this publication is of a general nature with a focus on the public health directions in Queensland. It is not intended to address the circumstances of any particular individual or entity. Although we endeavour to provide accurate and timely information, we do not guarantee that the information in this article is accurate at the date it is received or that it will continue to be accurate in the future.