LAW

Employers have a duty under Health and Safety at Work (Northern Ireland) Order 1978 to ensure, so far as is reasonably practicable, the health, safety and welfare at work of all its employees.

Northern Ireland commenced a further lockdown on 26 December 2020 which Ministers confirmed last week will be extended to 5 March 2021 with a review on 18 February 2021. This is against a backdrop of an increase in the rate of infection and new more contagious variants of Covoid-19 being present in the population.

With this further lockdown came a requirement for all employees to work from home if they can and only attend the workplace when they are unable to work from home.  Many of our Member companies will have employees who will not be able to work from home (e/g. manufacturing and food production). When employees are required to attend the workplace the Regulations now state: Employers that require staff to come into the workplace must complete a mandatory risk assessment.

Your business should be reviewing its risk assessment and considering if there are further actions that can be taken to minimise the risk of infection. This has resulted in many businesses introducing a rule that employees wear facemasks in the workplace.

The Regulations do provide that in certain indoor settings facemasks must be worn unless an exemption applies.  These settings include shops, shopping centres, public, private and school transport services, taxis, airplanes, public transport stations and airports, banks and some government offices. The majority of our Members’ workplaces will not fall into these settings.

There is also a list of reasonable excuses excusing persons from wearing a mask in certain circumstances such as:

• When they need to eat, drink, or take medication
• When they are asked to remove their face masks by a police officer or someone who may need to check their identity, for example, when buying alcohol, in banks, or in an airport or when boarding an aircraft.

WORKPLACE RULES

Where does this leave employers who require employees to wear a face mask?

As stated above, there is a legal duty on employers to ensure a safe working environment. If the business believes it is necessary for health and safety purposes to introduce a rule requiring employees to wear a facemask this may well be considered a reasonable management instruction. The purpose of the rule is to protect employees’ health and safety. However, it is important that the rule is kept under review to ensure the business can demonstrate that it remains a reasonable instruction. For example, when infection rates lower, or the public risk is lower, it may no longer be reasonable to maintain this rule.

If an employee refuses to wear a facemask without good reason you should contact the Legal Team to discuss the situation and the options before taking any steps. The business will need to consider the reasonableness of taking any disciplinary action and/or withholding wages.

Medical conditions and adjustments

If an employee refuses to wear a face mask because of a medical condition the business should consider obtaining medical evidence to understand if the condition affects the employee’s ability to wear a mask. If the medical evidence supports that it does, then the business will need to consider if a reasonable adjustment can be made to the rule permitting the employee not to wear a mask.

In workplaces where it is more difficult to maintain social distancing and/or where large groups of employees work together, a further risk assessment should be conducted on the impact of the person not wearing a mask.  In these work environments it may be difficult to allow the employee to continue to work in that area without a facemask as the risk may be assessed as too high.

Other relevant factors may include: if the business has had a number of positive cases; and/or has many employees self-isolating.  These may mean the risk in allowing the employee not to wear a mask is too high.

As you will be aware, an individual is required to self-isolate if they test positive or are identified as a close contact of a person who has tested positive. The definition of a close contact includes:

• been within one metre for one minute or longer without face-to-face contact
• been within 2 metres of someone for more than 15 minutes (either as a one-off contact, or added up together over one day)

If you assess the risk in allowing the employee not to wear a mask as too high, then you must consider what other adjustments could be made and implement any that are reasonable.

Care needs to be taken to avoid potential reasonable adjustment claims as it is likely that many of those who are medically exempt could be covered under disability legislation. Any such claim is likely to fall under the heading of a failure to make a reasonable adjustment.

The business will need to consider the employee’s role, the area that they work, and what level of interaction they may have with other employees.

Adjustments could include:

• Wearing a visor (although some research suggests that these do not offer adequate protection)
• Minimising social contact in the workplace
• Moving the employee to an area where they can work alone or with minimal contact with others
• Working from home

However, in any specific case we recommend you contact us for specific advice tailored to your individual circumstances.

Guidance on self-isolating can be found here

Guidance on wearing face coverings can be found here