Since the outbreak of the coronavirus (COVID-19), the wearing of masks that cover both mouth and nose, has become part of the new daily routine. Early on, employees began to protect themselves from the virus at their workplaces by wearing masks. For example, at several German airports, employees appeared at work wearing face coverings. In order not to spread panic among customers and travelers, employers enacted measures intended to combat the spread of the virus – with some success.
However, this was still at the beginning of the pandemic, when no one really knew what was coming. Many things have changed since then. Meanwhile, wearing masks in public transport and shops has since become compulsory in Germany. Therefore, the question of whether the employer can prohibit or prescribe the wearing of a mask is very topical.
First of all, the employer can issue unilateral regulations for the workplace, while still observing the limits of what is reasonable for the employee. Besides this, the employer also has a duty of protection and care for his employees. Therefore, the employer must identify risks and take protective measures to minimise health and safety hazards at the workplace. The choice of specific measures is left to the employer, to the extent that these are suitable for maintaining the well-being of the employees and preventing the risk of infection.
The employer must therefore balance various and often competing interests: if the employer wants to forbid employees from wearing face masks at work, he must balance the interests to protect his employees, with the interests in conveying that his employees’ appearances should project a certain measure of confidence towards the customers. In businesses where the minimum distance of 1,50 m cannot be maintained, e.g. in retail shops or other businesses with frequent customer contact, the employer has just one chance to make the right decision, which, in the light of the present public health and economic crisis stemming from the COVID-19 pandemic, prudently prescribes that the employer cannot prohibit the use of masks at work. Rather, in these circumstances, the employer must specifically instruct his employees to wear face masks, and provide appropriate protective equipment, in order to be compliant with the laws and regulations governing health and safety in the workplace.
Based on the continuing state of global affairs, it is also quite likely that the employer can issue an order requiring masks to be worn in the office, although the works council must be involved in the employer’s decision. If the employer and the works council cannot agree to make wearing face masks compulsory, or should they fail to reach an agreement on other health protection measures, the responsibility will fall to the arbitration committee to decide, appropriately. Measures taken by the employer without the works council’s approval are not effective and can immediately be challenged in court. If no works council exists, the employer must at least inform the employees of the health hazards, as well as any protective measures in place, to counter the dangers posed by COVID-19.
In view of current events, employers are advised to take all necessary measures to protect the health and safety of their employees. This can be done by, e.g. cleaning and disinfecting public spaces, workplaces, common areas and regularly touched surfaces (such as doorknobs), frequent handwashing and the use of hand sanitizer, avoiding contact with the face, nose or mouth and maintaining safe distances. Where these procedures prove inadequate, wearing face masks at the workplace can be made compulsory. It is important to note that in any event, prohibiting masks in the workplace is no longer a privilege afforded to employers.
Pusch Wahlig Workplace Law attorneys are available to assist you with these and other workplace issues. For more information, visit https://pwwl.de/
For more information please contact Joseph Granato, Communications Manager at L&E Global at firstname.lastname@example.org.