Face Coverings Outside the US - One Size Doesn’t Fit All

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In the same way that COVID-19 has impacted every country, does the scientific response to it also apply universally?

Given the CDC now recommends wearing face coverings throughout the workplace, US employers may feel they are “doing the right thing” by extending the same principle across all their work locations. But in some countries, mask wearing is either not accepted as reducing the COVID risk, or there are surprising obstacles to mask wearing.

In this short article, we outline surprising differences between regions and countries, and give pointers as to how global employers can achieve a unified approach. We focus on Europe, which is generally the most challenging region in managing COVID risk.

Europe - traps for the unwary

  • The Authorities across Europe do not have a consistent approach on mask wearing. In many countries, face coverings are seen as just one control measure, and one which carries risk if not implemented correctly. In the UK, for example, the government guidance says only that correct mask wearing ‘may reduce’ the spread of the virus, and that it should not be relied on at the expense of other proven measures such as distancing and hygiene. In Sweden the Public Health Agency has said that the scientific support for the use of masks in society is weak. However, the key is in the context: in the UK the first dismissal of an employee for not wearing a mask has just been approved by the Courts. This was the case of a delivery driver who refused to wear a mask on customer premises was barred by them and refused to commit to his employer that he would wear a mask in future.
  • Official advice on the type of masks required may also vary from the position in the US, which recommends a medical or multi-layered cloth. The most exacting country is Germany, where a medical mask is required (FFP2/ KN95 or surgical masks), and perhaps the most relaxed being the UK where most face coverings but are accepted except for surgical-grade masks, which are reserved for health care staff.
  • Unions or internal staff bodies (Works Councils) will generally need to be involved before introducing a mask-wearing policy. The approach varies between countries, from simply informing representatives (e.g. the Netherlands), to consulting and/or having to reach an agreement with them (e.g. Russia). In a majority of countries, employers need only engage with representatives if the policy goes beyond legal requirements (e.g. Poland and Switzerland). In some cases, the process can be expedited where a face mask policy is temporary and reflects a high risk level, for example a local COVID surge (the Netherlands, Germany). Extra process is also needed in some countries, For example, in France, in addition to seeking an opinion from the Works Council, employers also need a formal policy as part of their internal regulations and to send a copy to the local labor court/inspector, all one month before the policy comes into force.
  • Safety aspects. If mandating mask wearing, this will need to be formally included in health and safety risk assessments in many countries (such as Spain, Switzerland, the UK). If going beyond local legal requirements, employers will be under a particular onus to train staff and ensure safe use.
  • As in the US, discrimination issues can come into play, but with some differences; “disability” in Europe is generally a higher bar than the US, but concepts of religious discrimination and indirect discrimination based on particularly low take up among BAME communities are stronger, in particular in the UK. The concept of protection for a libertarian political belief in the right not to wear masks is unlikely to succeed however.

More consistency across Latin America

  • In the key Latin American countries, employees are already legally required to wear face masks when in the workplace, and employers are generally required to provide these (e.g. Argentina, Brazil, Chile, Colombia, Mexico, Peru, and Venezuela).
  • Generally speaking, employees can be disciplined for failing to follow employer requirements on mask wearing, provided these rules are properly implemented and communicated to the employees. Employee representatives generally play a lesser role in this region than Europe so communications are more commonly direct to the workforce.

Masks more culturally accepted in APAC

  • Mask wearing is much more culturally accepted in Asia than in many parts of the world, and masks were a frequent sight pre-COVID. Whilst in many jurisdictions there are legal requirements to wear masks in the workplace, the widespread voluntary donning of face masks as a precaution against COVID generally pre-dated such legal requirements, with many in Asia having learnt painful lessons from the H1N1 and SARS outbreak.

Achieving a unified approach

  • Employers who want to achieve a consistent mask wearing policy can choose a “principles” policy. This would generally encourage mask wearing, but defer to local health recommendations and requirements in each country. This approach will generally avoid a need for agreement from employees or their representatives, and is the simplest approach.
  • For a more consistent policy to enforce face coverings at all times in the workplace, employers will need to be prepared to justify and win over Works Councils and employees, in particular in Europe. Clear and detailed communications will be needed—including the risk of sanctions for employees who refuse to comply. Generally where mask wearing is a legal requirement, employers will be on safer ground to take disciplinary action against employees who do not comply, and in some countries will be obliged to do so (e.g. Germany). In other cases, sanctions may depend on the severity of the breach or other factors, and employers will need to assess each breach on a reasonable and case by case basis.

Complying with the strict letter of the law may not mean mask wearing at all times, in all locations. But for many employers, showing they are driven by the safety of their workers and customers may mean they are willing to take a more assertive approach. And as always, employers will need to keep current on the impact of local COVID variants and the status of state vaccination programs, and will need to be ready to pivot their approach quickly.

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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