Can Australian employers force workers to wear face masks

When a shop worker wasn’t wearing a mask, one woman was told the employee had an exemption on medical grounds, but she said she felt unsafe.

Welcome to Sisters In Law, news.com.au’s weekly column solving all of your legal problems. This week, our resident lawyers and real-life sisters Alison and Jillian Barrett from Maurice Blackburn help someone on wants to know if workers in health, retail and hospitality and other customer-facing roles can be forced to wear a mask.

Question:

I’m at a high risk of getting very ill from Covid-19 so I’ve been limiting my movements as much as I can during lockdown. I wear a mask and socially distance, and on the whole other people are doing the same.

However, I recently went into a store to pick up essential items and was shocked to see a worker serving customers without a face mask on. When I complained to the store manager he said the worker had an exemption on medical grounds.

Surely somebody dealing with people shouldn’t ever be exempt from wearing a mask? It made me feel unsafe and other customers looked shocked too. Can workers in health, retail and hospitality and other customer-facing roles be forced to wear a mask? – Susanne, NSW

Can workers in health, retail and hospitality and other customer-facing roles be forced to wear a mask? Picture: NCA NewsWire/Steven Saphore

Answer:

Mask rules are now in place in many states, including NSW where you are.

Wearing a mask is mandatory in settings such as supermarkets, shopping centres and retail premises, unless a person has an exemption.

Customers and staff are subject to the same rules about mask-wearing and any exemptions.

In NSW, exemptions from mask rules apply to people with a physical or mental health illness, condition or disability, that makes wearing a fitted face covering unsuitable.

Examples could include a person with a skin condition, an intellectual disability, autism or trauma.

If a person is exempt from wearing a mask they must carry either:

1. A medical certificate or letter signed by a registered health practitioner (such as a doctor), or a registered NDIS provider, or

2. A statutory declaration

A statutory declaration must identify the person’s disability, physical or mental health illness or condition, and declare that it makes wearing a fitted face covering unsuitable.

A police officer can ask a person to confirm the lawful reason they are not wearing a mask if they are otherwise in a situation where masks are mandatory.

The person not wearing a mask must show the police officer the proof of exemption, including producing evidence of their name and address.

Skin conditions, autism or trauma can be reasons for a mask exemption. Picture: NCA NewsWire/Bianca De Marchi

The reason for an exemption to mandatory mask rules is not always visible or obvious, so you should be respectful to those not wearing masks, as well as their employers.

It may be that employers in some situations are trying to balance the need to comply with public health orders, with their obligation to not discriminate against an employee based on a disability or medical condition.

Some businesses provide a lanyard or a badge for staff and customers noting their exemption, so that others do not query their failure to wear a mask, but this is not a requirement or a formal proof of exemption.

If the worker did not have a valid exemption for not wearing a mask then they could face a maximum penalty of six months’ imprisonment, a fine of up to $11,000, or both.

Police could also issue an on-the-spot fine of $1000 to the worker for breaching a public health order.

An employer is required to ensure their staff comply with the public health orders, including wearing a mask, unless there is an exemption Picture: NCA NewsWire/Bianca De Marchi

Additionally, on-the-spot fines can be issued to persons for breach of an order relating to not wearing or carrying a mask.

These fines range from $40 for a person aged 15 and under to $500 for a person aged 18 and above. Children aged 12 and under are exempt from mask rules.

An employer is required to ensure their staff comply with the public health orders, including wearing a mask, unless there is an exemption.

Failure to meet these obligations could lead to a penalty of up to $55,000, and an additional $27,500 each day the offence continues.

If you are concerned there has been a breach of the rules, you can make a report to Crime Stoppers.

This legal information is general in nature and should not be regarded as specific legal advice or relied upon. Persons requiring particular legal advice should consult a solicitor.

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