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COVID-19: Masks and Employment Law

Updated: Jul 27, 2022



There's a significant amount of information relating to mask exemptions, however, how these "exemptions" apply to employment law is clear: they don't.


... Or at least ... Not like you may think they do ...


COVID-19 Public Health Response (Protection Framework) Order 2021

The COVID-19 Public Health Response (Protection Framework) Order 2021 introduced a legal requirement to wear a face covering in specified premises or circumstances. However, in accordance with the Protection Framework, a person is not required to wear a face covering if the person has a physical or mental illness or condition or disability that makes wearing a face covering unsuitable.


There are no formal mechanisms for obtaining a mask exemption under the Protection Order, which means that this exemption is self-assessed. If you have a physical or mental illness or condition or disability that makes wearing a face covering unsuitable, you are exempt and you are not required to produce any evidence.


The Ministry of Health have released a new "communication card," which appears to reflect the mask exemption available from the Disabled Persons Assembly. This has been designed to make people feel more comfortable with their self-exempt status, however, there is no requirement to show a Communication Card.


The purpose of this exemption is to ensure that people with disabilities and other health conditions retain the right to access food and beverage services, education, pharmacies, and other services. This reflects New Zealand's obligations under the Convention on the Rights of Persons with Disabilities, to ensure that people with disabilities are afforded the full and effective participation in society on an equal basis with others.


Health and Safety at Work Act 2015

While the Protection Framework does provide the ability for a self-assessed mask exemption, this is only directly applicable to the Protection Framework. It does not automatically transfer into employment law.


The mask exemption available from either the Disabled Persons Assembly or the Ministry of Health does not automatically exempt a person from any mask policy implemented in the workplace.


The Health and Safety at Work Act 2015 requires that an employer eliminate risks to health and safety, so far as is reasonably practicable. This allows employers to implement various health and safety policies where a risk assessment has identified a risk to health and safety.


This has been the basis for vaccination policies, and it is the same process for face covering policies. The COVID-19 Public Health Response (Protection Framework) Order 2021 does not override the Health and Safety at Work Act 2015: the two are complementary, however, ultimately the Health and Safety at Work Act 2015 is primary legislation that will take precedent over the Protection Framework (which is secondary legislation).


This means that your employer has a right to implement a face covering policy to seek to eliminate identified risks to health and safety.


Employment Relations Act 2000

However, any face covering policy must meet the test of justification contained within the Employment Relations Act 2000: that is, the employer's actions in implementing a face covering policy must be what a fair and reasonable employer could do in all the circumstances.


The employer must also apply the face covering policy in a way in which respects the obligations of good faith.


This means that the employer must follow a process which allows for all employees to provide feedback on their views on face covering policies, and must consider the application of the face covering policy on a case-by-case basis for each employee.


Reading the legislation together

In my view, in accordance with the Health and Safety Act 2015, an employer may impose a face covering policy where a risk to health and safety has been identified. However, in considering the obligations of the Employment Relations Act 2000, the employer must genuinely consider an employee's reasons for being unable/unwilling to wear a face covering, and must consider whether it's possible to allow an exemption in this situation.


This approach not only respects the obligations of good faith to be active and constructive in maintaining the employment relationship, but also ensures that the employer is considering whether reasonable accommodations can be made for the employee's disability or health condition, in accordance with the Human Rights Act 1993.


It is not true that a person is not required to provide a mask exemption, communication card, or otherwise provide evidence of their reasons for being unable/unwilling to wear a face covering. This is only applicable to the Protection Framework, and does little to alleviate an employer from its obligations under the Health and Safety at Work Act 2015. An employee and employer must engage in good faith to discuss the potential for an internal mask exemption. This turns into a potential quasi-medical-incapacity process: a process which is outlined in most employment agreements and which is well-known in the industry.


This means that an employer can ask you for medical evidence to support your claim that you are unable to wear a face covering. This is not a breach of privacy: an employer may collect personal information where it is collected for a lawful purpose which is connected with a function or activity of the business (such as health and safety concerns).


The employer may also consider the list of reasons for requesting a communication card when deciding whether to accept a persons reasons for being unable to wear a face covering. This includes where the person has:

  • Asthma

  • Skin irritation, eczema, or sensitive skin

  • Hearing aids

  • Migraines

  • Glasses

  • Hay fever

  • Difficulty breathing

  • Dizziness, headaches, nausea or tiredness


Ultimately, even if an employee provides medical evidence, this does not inherently prohibit the employer from considering further measures. In some workplaces, the risks to health and safety may be too great, that there are no exceptions to the face covering policy. In other workplaces, there may be a small allowance for some employees to receive internal mask exemptions from their employers. It will depend on the workplace.


These processes need to be handled with care, to ensure that there is no risk of discrimination. However, it is worthwhile noting that the Human Rights Act 1993 does provide some exceptions in relation to disability, particularly where the environment in which the duties of the position are to be performed or the nature of those duties, is such that a person could perform those duties only with a risk of harm to that person or to others, including the risk of infecting others with an illness, and it is not reasonable to take that risk.


Whether an employer will be justified in implementing a face covering policy will come down to the facts. Whether an employer is required to accept a persons 'mask exemption' will also come down to the facts. There is no "one size fits all" approach with employment law ... There never is.


Conclusion

Telling your employer that you have a mask exemption, and are not required to provide any additional evidence, is not conducive to an active and constructive employment relationship. If we take a step back and stop thinking about masks, this is no different to a process where an employee is unable to perform certain tasks and duties due to an injury. The employer is entitled to seek more information on that injury, and they are entitled to make decisions with respect to your employment.


Good faith is about compromise. That's what it means to be active and constructive in maintaining the employment relationship. Maybe you can't wear a face covering 24/7. Can you agree to wearing a face covering for only some tasks and duties? Can you temporarily change some of your tasks and duties? Could you discuss social distancing instead? If your GP won't provide a mask exemption, can you ask for evidence of your health condition instead?


If you approach the conversation with good faith, a positive result is more likely. When I'm unsure on the exact application of the law I always refer back to good faith. This may be new law, and we may be unsure on how it applies, but we know how to act in good faith.


If in doubt, please get your legal advice from an employment law expert.

 
 

Legal AF Limited t/a Ashleigh the Advocate

03-0767-0043225-000


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