Government guidance stating that the use of face coverings at work is optional does not sit comfortably with the requirement to wear masks on public transport. Should employers make them mandatory when their workplaces reopen, in case the guidance is updated? Simon Antrobus, Erin Shoesmith and David Young look at the science and what employers should be considering.
As organisations are invited to reopen, employers are raising the same question: should employees wear masks or face coverings?
Return to work
It is not an easy question to answer in light of incongruous scientific and government policy on the issue.
On the one hand the government is downplaying the role of face coverings or non-medical masks in its guidance for business reopening by saying they are only “optional”, but on the other it is making them compulsory for those travelling on public transport from 15 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?
Behind the change in the government’s position is evolving domestic and global recognition of the potential benefits of wearing masks, in preventing an infected wearer transmitting the virus to others. This has prompted the World Health Organisation to update its position on masks, previously recommended only for those displaying symptoms, to 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 the UK, the Royal Society multi-disciplinary DELVE team recently analysed the effectiveness of face masks among 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 the Scientific Advisory Group for Emergencies (Sage) back in April, but was only recently published.
What does government guidance say?
So where does this changing position leave employers concerned with protecting the safety of their employees and customers?
This somewhat dismissive approach towards face coverings now seems unusual when looked at alongside the belief that they are necessary on buses and trains.”
The current government guidance for employers permitted to reopen after lockdown is split into different sectors with differing recommendations, but the advice around 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, while there is recognition that other types of mask or face covering may be a “marginally beneficial” precautionary measure, in reality it is treated as a 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 two-metre social distancing rule cannot be met and outlines six potential measures in response – none of which include the wearing of masks or face coverings.
This somewhat dismissive approach towards face coverings now seems unusual when looked at alongside the belief that they are necessary on buses and trains.
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, among visitors to the business. 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 other prescribed measures are going to make an enclosed workplace environment “Covid-19 Secure”.
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These are all 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.
The 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 government 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.
Could the guidance change?
But what is of more concern is the prospect of the government taking a U-turn on its policy on masks, with employers suddenly being required to mandate mask usage in their enclosed workplaces at very short notice.
Designing a process for mask usage in the workplace is a more onerous and complicated task than might 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 set requirements for their design and independent assessment.
What is needed now is a clear policy. This is not something that can fairly be left to employers.”
From a legal perspective, the employer would also have to consider how masks 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 is needed now is a clear policy. This is not something that can fairly be left to employers, in circumstances where the science is ambiguous as to when 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 in reducing the spread of the virus, 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, employees 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 US 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 they are likely to have a 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 5 June that all staff, visitors and outpatients in hospitals must wear surgical masks from 15 June, a policy allegedly not discussed with NHS trusts before its announcement.