Mandatory wearing of face masks from Monday 25th January.

Mandatory wearing of face masks from Monday 25th January.

Hi Colleagues,

As Divisional Reps we have been inundated with calls from Area Reps regards the position too wearing of Face Masks. Frankly, we still cannot understand that almost 10 months we are still debating with our members regards this issue.
I am absolutely aware that our Members within the CWU understand that COVID-19 is a Deadly Viris, and the need not only to protect themselves but their work colleagues and families.
Therefore, it is vitally important that the Divisional Reps ask our members within the Division to the wearing of Face Masks while working within RM Premises. We understand that members from Monday 25th January staff may be asked to wear (indeed rm will be distributing f/masks 5 in pack) Face Masks, with the only exemption being Medical Reasons.
I have also attached a copy of a letter from Union-line (we would like to thank George Ross for forwarding this document) outlining the potential action RM could take. If members persist not wearing Face Masks without medical/legitimate reasons, which may be asked by the manager, they could leave themselves open to disciplinary process, as well as potential breach of H & S Guidance.

This definitely is not the position we want our members to face during these Unprecedented Times we are all facing. Can all Branch Sec’s/Area Reps please forward the attachment to all Functional/Unit Reps.?

Regards

Kenny, Tam, Rab.

CWU HQ Wimbledon
Your Reference:
Our Reference: 545640.1/ET/
21st January 2021
Dear Ms

RE: Your request for advice

I am writing to confirm my advice regarding face mask exemptions in the workplace, and what an employer may be able to do as a result of these exemptions. My advice is outlined below.

In settings where face coverings are required in England there are some circumstances where people may not be able to wear a face covering. The government guidance actively encourages employers to be mindful and respectful of individual circumstances, as reasons for not wearing a mask may not always be visible.

Exemptions for wearing a mask include (but are not limited to):

  • people who cannot put on, wear or remove a face covering because of a physical or mental illness or impairment, or disability
  • where putting on, wearing or removing a face covering will cause you severe distress
  • if you are speaking to or providing assistance to someone who relies on lip reading, clear sound or facial expressions to communicate
  • to avoid harm or injury, or the risk of harm or injury, to yourself or others, including if it would negatively impact on your ability to exercise or participate in a strenuous activity
  • if you have an age, health or disability reason for not wearing a face covering.

The government website and guidance is clear in stating that people do not need to routinely show written evidence or an exemption card for this, meaning GP letters are not required. Carrying an exemption card or badge is a personal choice and is not required by law. The government does not provide these, but the government website has a downloadable exemption card template.

Employers should assess each employee on a case-by-case basis, depending on their type of work, any exemptions or mitigating circumstances.

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, as well as a potential breach of current health and safety guidance.

Where an employee has a legitimate reason for not wearing a face covering, and is exempt, the employer should consider whether reasonable adjustments are possible in the workplace to allow the employee to work without having to wear a mask, e.g. if they can keep more than 2m distance from other employees or customers.

As above, government guidance states that people are not required to provide medical evidence or a GP letter in these circumstances. This does not mean, however, that it would be unlawful or unreasonable for the employer to ask for such information and evidence. Much in the same way as any other disability or medical issue is handled in an employment context, medical evidence may be required to allow the employer to look into reasonable adjustments. If the employer also has reasonable grounds for thinking that the employee is falsely claiming an exemption, then they will generally be justified in asking for evidence.

If the employer already has information through HR or the individual’s personnel file which shows their disability or a reason why they may be exempt, e.g. PTSD resulting in a fear of the face being touched or covered, then no further evidence would logically be required as it already exists. If the employer has no prior record of any medical issues for that individual employee, it may be reasonable to ask for evidence of this. This will be especially true as the employer will be able to argue that they are simply attempting to comply with the legal mandate for face coverings, and general health and safety concerns.

I hope this advice is helpful to you, and please let me know if you have any further questions.

Yours sincerely

Emily Turner
Unionline
emily.turner@unionline.co.uk
UNIONLINE is a trading name of Trade Union Legal LLP
Registered Office: PM House, 250 Shepcote Lane, Sheffield, S9 1TP, Company Registration OC388189
Registered as a Limited Company in England and Wales
UNIONLINE is authorised and regulated by the Solicitors Regulation Authority under number 608309

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