Introduction

As the lockdown restrictions begin to ease, and businesses are invited to reopen for trade, employers are increasingly raising the same question: what should be the approach towards the wearing of masks or face coverings in the workplace? It is not an easy question to answer in light of fluctuating and incongruous scientific and Governmental policy on this very issue. On the one hand the Government is downplaying the role of face coverings or non-medical masks in its guidance for business reopening, emphasising they are only “optional”, but on the other hand is viewing them as sufficiently important to make them compulsory for those travelling on public transport, as from 15th June. How do employers square these two apparently conflicting stances, and should all companies be adopting a “belt and braces” or “masks and distancing” approach?

The Science

The backdrop to the change of position by the UK Government is evolving domestic and global recognition as to the potential benefits conferred by masks in what is called “source control”, in preventing an infected wearer transmitting the virus to others. This has in turn prompted the World Health Organisation to “update” its position on masks, which had previously been to recommend them only for those displaying symptoms. As from 5th June, the WHO is now recommending that “governments should encourage the general public to wear masks in specific situations and settings as part of a comprehensive approach to suppress Covid-19 transmission”. In this country, the Royal Society multi-disciplinary DELVE team recently analysed the effectiveness of the provisions of face masks for use by the general public and concluded that “widespread risk-based face mask adoption can help control the Covid-19 epidemic by reducing the shedding of droplets into the environment from asymptomatic individuals”. This analysis was provided to SAGE back in April, albeit only more recently published.

Government Guidance to date

So where does this changing position with regards to masks leave those employers concerned to protect both the safety of their workforce and of their customers? The current government guidance for employers permitted to reopen their businesses after lockdown is split into different sectors, but the advice as to face masks is consistent across the board. Firstly, there is the concern that the private sector will divert supply of much needed PPE and medical masks from frontline healthcare, hence firm guidance that employers should not use PPE if they are were not previously doing so (e.g. for pre-existing respiratory hazards). Secondly, whilst there is recognition that other types of mask or face covering may serve as a “marginally beneficial” precautionary measure, in reality it is treated as a measure of the last resort, to be implemented only if physical distancing is unworkable. In fact, the Government’s “5 steps to working safely” that sits above its sector guidance provide expressly for circumstances where the 2m social distancing rule cannot be met and outline 6 potential measures in response, none of which include the wearing of masks or face coverings. 

Return to work and appetite for risk

That somewhat dismissive approach towards face coverings now sits uncomfortably alongside the belief that they are so necessary to reduce the risk of transmission on buses and trains that every passenger must use one. Legally, employers are required to carry out risk assessments and, under the terms of the Health and Safety at Work Act 1974, must take all reasonably practicable measures to protect employees and members of the public. The Government and Health and Safety Executive are treating that obligation as extending to protection against spread of the virus from one employee to another and, potentially, amongst a business’ visitorsing to the businesscustomers. If employers have to take all reasonably practicable precautions to guard against spread of the virus, it seems that they would now be best advised to add face coverings into the mix. After all, it is a complete fallacy to believe that the application of physical distancing signage, screens and alike are going to make an enclosed workplace environment “Covid-19 secure”, as the Government suggests. These are all simply sensible mitigating measures that can reduce the risk of transmission of the disease but they cannot guarantee that an insidious virus, potentially harboured by an outwardly asymptomatic and undiagnosed employee, will not be spread amongst the wider workforce. No workplace in that sense will be “secure” from this disease, hence many employers are now reconsidering the provision of masks.

Technical standards and restarting the economy

The hitherto laissez-faire attitude of the authorities towards the use of masks, unlike those in the South East Asian countries where control of the virus has been most successfully achieved to date, does of course make it unlikely that any employer will face enforcement action or prosecution by not adopting their use. At least for now. It is well recognised by the Courts, most recently by the Supreme Court, that official governmental guidance is likely to “set the bounds” of what is reasonably expected of an employer. That may be of little comfort, however, to an employer faced by continuous demands from its workforce or unions for the provision of face masks. It is also of little protection if the official guidance itself is failing to follow developing knowledge on the issue. But what is of more concern is the prospect of the governmental policy on masks becoming a full blown u-turn, with employers suddenly being required to mandate mask usage in their enclosed workplaces at very short notice (and possibly masks rather than face coverings)..

This is all because designing a process for mask usage in the workplace is a more onerous and complicated task than might otherwise be presumed by policy-makers. The WHO recognises this by noting the huge variability in terms of filtration efficiency between different types of mask and face covering (a range of between 0.7% to 60%). This is something echoed by the British Standards Institute, which in noting the sheer lack of standards for non-medical masks has recommended that the government should identify the level of protection that such face coverings should be providing and should set requirements for their design and independent assessment. The reality is that it does stop at the provision of a mask (of whatever type). From a legal perspective, the employer would also have to consider how they should be maintained, how usage should be monitored or enforced and what criteria would determine the point at which mask usage could be relaxed.

What employers need

What is needed now is clarity as to the policy that will be adopted so far as mask usage is concerned, going forwards. This is not something that can fairly be left to employers, in circumstances where the “science” is ambiguous as to when precisely masks will provide a significant impact in reducing the risk of transmission. If it is likely that masks are now to play a greater role, as heralded by the new mandatory requirement for public transport, then employers need a significant period of notice to get themselves ready. There needs to be clarity as to which types of mask are effective, and that there are available supply lines for the enormous and sudden spike in demand. Whether employers are asked to supply masks or, as now, members of the public have to provide their own, if masks over face coverings are to become the new norm they need to be accessible. The Director General of the Chinese Centre for Disease Control and Prevention has said “The big mistake in the U.S. and Europe, in my opinion, is that people aren’t wearing masks.” It seems that this may now be changing, and probably rightly so, in recognition that whilst masks are no panacea in themselves, they are likely to have some significant effect in preventing infected but asymptomatic people passing on the disease. The Government needs to give early warning of this change of approach if employers are going to have any chance of being able to implement it and comply with the law. It has not, apparently, made a good start following its announcement on 5th June that all staff, visitors and outpatients in hospitals must wear surgical masks from 15th June, a policy allegedly not discussed with NHS trusts before its announcement.

Simon Antrobus QC, Crown Office Chambers