As the government has mandated that those using public transport (including bus drivers) must wear masks some of you may be asking: can my employer force me to wear a mask at work?
On the main, historically employers have required employees to wearing certain clothing and gear in three scenarios:
1. Wearing branded clothing to promote the employer’s business (for example many retail, hospitality and food service workers).
2. Wearing identifiable clothing (uniforms) for the purposes of the identification of officers (e.g. police officers, emergency workers, airport security).
3. Wearing protective clothing for the purposes of operational safety (for example protective eye and ear-wear such as airport workers, constructive workers).
The requirement to wear clothing and/or protective gear is usually contained within a combination of the employee’s employment agreement and the employer’s policies (often there is a specific clothing or gearing policy). Ordinarily an employment agreement will state that the employee agrees to abide by the employer’s policies which may be updated from time to time. By signing such an agreement, one agrees to comply with the employer’s policies, including if those policies state the employee must wear specific clothing or gear in the course of performing the duties (this may also be contained in the employment agreement itself). That however is not an end to the question, the requirement within the employer’s policies (and/or within an employment agreement) must still be ‘fair and reasonable in the circumstances’.
Similarly if the employer does not have these policies and/or a written employment agreement in place, the employer is not prevented from issuing a ‘work instruction’ to wear certain clothing and gear. The key question is whether that work instruction is lawful and reasonable in the circumstances.
As both situations turn on the question of the reasonableness of the employer’s requirement, the ultimate question must therefore be, is the requirement to wear a mask fair and reasonable in the circumstances? This will be a question that is a matter of fact and degree and will change depending on industry, the nature of the work and the specific workplace.
Take for instance the bus driver’s circumstances, given the government mandate to wear masks on public transport the instruction by their employer to do so is arguably reasonable.
The situation is slightly more complex for workplaces that are not covered by such a strict government mandate. One example of this situation is the small open plan office environment where office space is at a premium, such as a call centre or commercial kitchen. If the employer in this situation cannot socially distance to the appropriate level (1m in controlled environments at Alert level 1), or social distancing is uneconomic or financially nonviable, then would it be reasonable for the employer to require mask-wearing? The jury is out, but arguably yes.
Some relevant case examples:
Welch v Wellington Racing Club – the club introduced a rule that staff must wear black trousers and a white shirt for a ‘corporate look’. The employee in question was told “no shirt, no work and Im told you can’t come back on Trentham” – this statement was found by the Employment Tribunal to be a dismissal and that instant dismissal was unjustified because the employee had no opportunity to explain or address the issue at the time of termination.
Pendly v Academy Funeral Services Ltd – Mr Pendly worked as an assistant funeral director. He was required to wear a suit during the course of some of his (client-facing) duties and casual clothes for remainder of the time. Mr Pendly refused to wear casual clothes for the remainder of the time (his suit supplied by the employer was warn through), was forewarned that he would be dismissed if he continued to wear his suit when he wasn’t supposed to and then dismissed for this reason. The Tribunal found Mr Pendly to have deliberately disobeyed a lawful and reasonable instruction, that this meant there was substantive justification for the dismissal and it was procedurally fair as he was forewarned he would be dismissed if he continued to disobey the work instruction. The Tribunal referred to NZ Printing and Related Trades IUOW v Clark and Matheson Limited which held “open and deliberate defiance to obey a lawful and reasonable instruction given by a person in authority clear amounts to misconduct of a degree which may, in our view, justify instant dismissal.