What should an employer do if an employee refuses to wear a face covering when this is required?
It is a legal requirement for staff in some workplaces to wear a face covering. The rules on which workplaces are covered differ in England, Northern Ireland, Scotland and Wales. A face covering is something that safely covers the nose and mouth (they are often referred to as face masks, but they are different to the types of face masks that are required as personal protective equipment (PPE), for example in medical settings).
In addition to the legal requirements around face coverings, employers must comply with their existing health and safety obligations towards employees and customers. Employers must carry out a risk assessment to identify the measures necessary to prevent the transmission of coronavirus (COVID-19) in the workplace. This risk assessment may conclude that the use of face coverings in the workplace is necessary.
Some people are exempt from the requirement to wear a face covering, where they have a reasonable excuse not to wear one. The Regulations applicable to England and Scotland state that this includes where someone is prevented from wearing a face covering by a physical or mental illness or disability, or because wearing one would cause them severe distress. The definitions in the Regulations applicable to Northern Ireland and Wales are the same as those for England and Scotland, except that the Northern Ireland Regulations do not mention physical or mental illness, and those for Wales do not mention severe distress.
If an employee working in an environment where face coverings are required refuses to wear one, the employer should ask them for the reason. If the employee does not have a legitimate reason for not wearing a face covering, a failure to wear one is likely to be a refusal to follow the employer's reasonable instruction and therefore grounds for beginning a disciplinary process.
Where an employee has a legitimate reason for not wearing a face covering, and is exempt under the relevant Regulations, the employer should consider if their role could be adjusted so that they can keep at least 2m from others or be separated from others by a screen. The employer's risk assessment should include consideration of other options, such as the use of a face visor/shield. Employers must ensure that they do not discriminate against employees with a disability when enforcing rules on wearing face coverings. The employer should discuss with the employee what reasonable adjustments could be made.
Although Government guidance for England states that people do not need to provide medical evidence of their reason for not wearing a face covering, this will not necessarily always apply in an employment setting. Where it is necessary to consider reasonable adjustments for a disabled employee, or where the employer has reasonable grounds for thinking that the employee is falsely claiming to be exempt, the employer will generally be justified in asking for evidence.