Currently, those aged 18 and over are allowed to receive their first dose of the Coronavirus vaccine. However while this is now available, individuals have the right to refuse to take the injection. If this is the case, employers will likely have an HR headache on their hands as they try to navigate around employees who choose not to receive the jab.
With this in mind, could employers force unvaccinated staff to wear face masks? There is no specific standalone legal right that all employers can rely on to require workers, whether vaccinated or unvaccinated, to wear face masks. There are certain businesses however that can instruct employees to wear masks, such as jobs that require employees to come into close contact with members of the public. Employers operating in such locations can rely on these regulations to require workers to wear face masks when in those areas. But this applies to all workers, not just those who have not had a vaccine.
From 19 July (previously June 21st), the Government shared that it hopes to remove “all legal limits on social contact,” which means that employees will be able to return to their place of work, after PM Boris Johnson instructed everyone to work from home where possible last year. Of course, some social distancing measures will remain in place while the wearing of masks may be mandatory in some public spaces.
This raises the question, whether employers can enforce this type of regulation within their workplace. For this to work, a policy would need to be implemented based on the legal requirements and the employer’s internal risk assessments.
However, this may be harder to do in workplaces not covered by the mandatory requirements if other measures could be used instead to reduce the risks of COVID-19 transmission. In addition, if an employer wished to enforce such a rule, they should provide the appropriate face masks for staff to wear.
Once this is carried out employers may then be able to argue that they have given a lawful and reasonable instruction to staff to wear a face mask and any failure to comply is therefore a breach of the implied legal duty to follow such instructions that could lead to disciplinary action.
With any type of blanket policy such as this, there are risks that employers should be mindful of. For example, if a staff member refuses to wear a mask due to medical reasons, it is unlikely to be reasonable for an employer to discipline them for this. Plus, any detrimental treatment as a result of this could lead to a potential disability claim.
In addition, the risk may also heighten if an organisation only wants to enforce masks for unvaccinated staff. Treating those who have and haven’t been vaccinated differently may amount to indirect discrimination on the grounds of age, maternity or pregnancy, disability or religion, depending on the reason why someone remains unvaccinated.
Despite this, there is nothing to stop employers from asking staff to wear face masks in certain areas of the office; the challenges come with enforcing it as a mandatory requirement.
If you would like to discuss this issue or indeed any other COVID-19 workplace related issues please contact a member of the Employment team.
As featured in HR Grapevine with updates to reflect changes in guidance.