What do we do if an employee refuses to wear a mask while at work?Posted in : Seamus Says - Employment Law Discussion on 7 May 2021 Issues covered: Coronavirus; Wearing Masks; Health and Safety
Scott: "All employees are required to wear a mask in this organisation. "Occupational Health Service advises that there is no medical reason that an employee cannot do this. However, this employee has anxiety issues. As a result, we've offered a reasonable adjustment of moving to another shift, enabling them to work alone without a mask, which they have refused because, presumably, they don't want to feel isolated. Meanwhile, they are still off sick. Where do we go with this?"
Seamus: Well, I think that that is typical. Ultimately, what you need to rely upon is the medical evidence that you've received. I'm not exactly clear from the question what medical evidence has been obtained. I know that there is no medical condition, but there is anxiety, and possibly you could understand somebody with high anxiety struggling to breathe. Maybe the wearing of a mask either triggers that or exacerbates the circumstances.
But there are potentially other ways to look at that. A face shield rather than a mask might be a possible alternative. But I'm sure that that has all been looked at.
Key for me would be to get some medical advice. If the employee is suffering from anxiety, I think the employer needs to get a clear understanding of what that means.
I think if you have a medical report from an occupational doctor to say that the person should be excused and can't wear a mask, I think you have to accept that.
I don't know that it is, but if it is the situation that the company or the organisation have done as much as they can in terms of getting evidence, to me, they have made an alternative at a reasonable adjustment to the employee. Yes, I understand the isolation, but presumably this wouldn't be for an extended period of time. You're talking a short-term, interim period until things are safe again.
In those circumstances, I would consider that if there is an alternative and if it is a valid alternative that has been suggested and refused, I'd really like to get to the bottom of what exactly the employee is putting forward as their reason for not accepting the offer or the adjustment that's being made. But on the basis of the information, I think that I would be pushing that and saying that it is an alternative.
Possibly, the isolation maybe is linked to the anxiety. I don't know. But the key thing has to be about the medical evidence.
The information in this article is provided as part of Legal-Island's Employment Law Hub. We regret we are not able to respond to requests for specific legal or HR queries and recommend that professional advice is obtained before relying on information supplied anywhere within this article.