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GOVERNMENT RELEASES

GOVERNMENT RELEASES WORKPLACE SAFETY GUIDANCE: CAN YOU CONTINUE TO ENFORCE MASK WEARING?

The Government has now published the revised Workplace Safety Guidance as England moves to Step 4 of the covid-19 roadmap on 19th July. As outlined in previous updates, legal requirements to wear face coverings, engage in social distancing and limit contact have been removed. Instead people will be asked to make informed decisions and act carefully and proportionately, to manage the risks to themselves and others.

The new Workplace Safety Guidance for Shops, Branches and Close Contact Services encourage business to undertake six priority actions:

  • Complete a health and safety risk assessment for stores
  • Provide adequate ventilation
  • Clean surfaces more often
  • Turn away customers or colleagues that have covid-19 symptoms
  • Enable people to check in using a Test and Trace QR code
  • Communicate your procedures to colleagues and customers

The guidance states that face coverings are no longer required by law but states that government expects and recommends that people continue to wear a face covering in crowed, enclosed spaces. On risk assessments the guidance outlines that employers have a legal requirement to carry out risk assessments and that Covid-19 is a workplace hazard that should be addressed in assessments. Interactive tools from the Health and Safety Executive ae available here to help you develop a risk assessment.

The guidance also places greater emphasis on the important of good ventilation, either through natural ventilation or mechanical ventilation such as fans or ducts. Its recommended that poor areas of ventilation are identified in risk assessments and options considered to increase air flow. The HSE have developed guidance on ventilation here.

Please note that the workplace safety guidance applies to England only. There are different regulations and guidance in place for Scotland and Wales.

Can you continue to enforce mask wearing?

Businesses who want to enforce mask-wearing in future will face a number of competing responsibilities and duties:

  • Under the Equality Act 2010 they will have a duty not to discriminate against anyone wishing to use their services
  • However, they will also owe duties to their own employees and other customers including:
    – Duties under the Health and Safety at Work etc Act 1974 to conduct their businesses in such a way as to ensure, so far as is reasonably practicable, the health and safety of their workers and customers
    – Potentially duties to make reasonable adjustments for vulnerable disabled employees or customers who may remain at higher risk from COVID-19.

The key step that businesses can take if they do want to continue with a mask wearing policy is therefore to think about their justification defence in advance. That will mean considering and clearly documenting the legitimate aim they wish to rely on and considering the proportionality of their approach. Key points to consider may be:

  • Obtaining scientific evidence on the level of risk posed by your business
  • Engaging with unions
  • An updated risk assessment of their premises, including infection control risks – for example a business with poor ventilation might be viewed differently to one with a state of the art ventilation system
  • Gauging/surveying customer opinion – if the majority of customers support a mask-wearing policy that should help show it is proportionate
  • Considering what exemptions will be allowed and how they will be applied
  • Staff training
  • Ensuring they know and understand their service users and employees – businesses with known vulnerable employees or service users may be in a stronger position to enforce the use of masks.

Overall, having a well thought out policy and ensuring consistency of treatment will be key to reducing the risk of claims.

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