Last updated: 6 October 2020
The UK Government announced that, from 24th September 2020 in England, it is mandatory for staff likely to come into close contact with the public to wear a face covering whilst at work, unless they are exempt for one of the reasons outlined in the Government’s advice.
Exemptions have not changed from previous guidance; therefore, anyone who is prevented from wearing a face covering or who would find it difficult to do so because of a disability or health condition will be exempt from wearing one. The Government’s Chief Medical Officer has advised these changes could be in place for a minimum of six months. Therefore, this timeline should be used as a minimum period when looking at the sustainability of adjustments. Bear in mind though, these provisions could also be in place for longer than six months.
What does this mean for employers?
It is now the legal duty of employers to ensure that all staff working in environments outlined in law and in public-facing roles wear a face covering at all times when doing their job. It is the responsibility of the employee to share that they may have an exemption and must be able to provide a reasonable justification as to why their disability or condition prevents them from wearing a face covering.
As this is a legal instruction, employees cannot refuse to wear a face covering other than for the reasons outlined under exemption rules. For example, an employee cannot refuse to wear a face covering due to beliefs or opinions about face coverings. If an employee refuses to wear a face covering when instructed to under reasonable grounds, the employee can be asked to leave the working premises.
Making reasonable adjustments for employees who cannot wear face coverings
Some employees might be exempt from wearing a face covering or find it hard to do so because of a disability or condition. However, it is still the duty of the employer to ensure that all adjustments are considered and that supportive conversations take place between an employee and their manager. For some employees, this could be the first time they are telling an employer about a disability or condition.
Consider the below points when exploring adjustments:
- What is the barrier or the direct reason for why an employee cannot wear a face covering? It is vital that any adjustments or support provided, or proposed, directly removes the barrier(s) preventing an employee from wearing a face covering. Examples of adjustments might include changing the material that the face covering is made of, as certain materials can cause irritation or allergies or wearing face coverings for limited periods of time. In this case it might be an adjustment to limit the hours that the employee spends in a customer facing role. This might mean assigning them to other “back office” duties for the remaining period – if possible – or reducing the hours that they work (see below).
- Document all potential, proposed, and in-place adjustments so that it is on record that all adjustments and support sources have been considered. This is for the purpose of any potential formal processes that may be required to be followed later down the line.
- If all reasonable adjustments in place within the current role do not remove the barriers experienced by the employee and nothing further would help remove the remaining barriers, redeployment to a different non-customer facing role should be considered if possible. This could be temporary or permanent. However, in terms of what “sustainable” could mean in this context, as above, consider the timeline of six months given by the Government as a minimum period for any alternative arrangements.
- Consider the Chancellor’s new scheme if it is seen that to make a redeployment sustainable, part-time or a reduction of hours is necessary. More information can be found here. For some employers, this scheme may not be the most cost-effective method of retaining staff. However, this scheme could form part of a reasonable adjustment in order to keep disabled staff employed. Therefore, the costs would have to be significant, unsustainable, or unreasonable for this scheme to not be pursued to retain staff in a reduced capacity.
- Following on from these steps, if it is unsustainable to redeploy your employee, and all reasonable adjustments have been explored and exhausted, then a formal process under your capability procedure may be appropriate to pursue.
Occupational health and medical evidence of exemption
Disability inclusive employers would often primarily respond to employees’ difficulties or concerns with trust – i.e. trusting that wearing a face covering difficult for an employee if they say it is. That said, as above, it might be the case that it is essential for the employee to continue undertaking their role and duties and there is no alternative. Employers should look to implement reasonable adjustments to remove the barriers faced by the employee, so that they can work safely and within the realms of the law.
If an employee cannot wear a face covering and there is no other role for them to cover or work in during this time, employers should utilise any form of occupational health or other medical advice they have to evidence that there is no other adjustments or support that can be implemented.
In situations where an employee has a disability or condition that affects them being able to wear a mask, they may already have something in writing about their condition, such as a letter from a GP, hospital, or other specialist. As above though, we would ask employers to think about if asking employees to prove their disability or condition in this way is the right thing for them to do, and how it helps resolve the situation and support the employee.
Working with the public and with customers
Employers will have to consider the impact on, not only disabled employees, but also disabled customers. Employers do not have the same level of control over the enforcement of customers wearing face coverings in comparison to their own employees, as it is harder to ask for evidence of an exemption every time a member of the public enters the premises.
It is therefore important to support public and customer facing staff by providing them with the information and briefings to manage situations involving the public and face coverings. Consider the following points:
- Ensure staff are aware of the company line and approach when in certain customer scenarios – for example, if a customer refuses to wear a face mask and does not state that this is due to an exemption. For example, what can the staff member do in these situations? Who do they contact? Who on the premises would call the police if the situation got to the point of necessary legal intervention?
- Ensure staff are aware of they can and can’t do – for example, staff can lower face coverings if a customers or a member of the public lip reads to communicate, but there should ideally be provisions in place to do this safely, such as Perspex barriers and social distancing measures. See our advice on face coverings and serving customers for more information.
- Ensure signage instructing the use of face coverings for customers is clear, accessible, and appropriately positioned in customer spaces. Also consider some individuals may require non-visual communications in to inform them that a face covering is required.
- Ensure staff know that some people who are exempt from wearing a face covering may show staff an exemption cards such as those shown here.