The Use of Face Masks at Work
August 3, 2020
First Victoria’s Chief Health Officer Dr Brett Sutton recommended that face masks be used to reduce community transmission of COVID-19. Then, on July 19, this advice changed: as numbers of new infections in Victoria continued to rise at an alarming rate, the Premier of Victoria, Daniel Andrews announced a number of new restrictions for Melbourne and the Mitchell Shire Council, which are currently in lockdown, and only allowed to leave their homes for four reasons: shopping for essential food and supplies, care and caregiving, exercise, and study and work, if they can’t do it from home. On August 2, the government announced that Melbourne would be under Stage 4 restrictions, and the rest of the state would be put under Stage 3 restrictions. (Read more)
This means that everyone in Victoria must now wear a face covering or mask when leaving the home - and they can only leave the home for one of four permitted reasons.
In addition to this, on July 13, the Federal Health Minister announced that it was mandatory for aged care workers in Victoria's 'hot spot' areas to wear masks.
This has raised a number of questions about what this means for the use of face masks at work.
The guidance from the Chief Health Officer notes that masks are an additional protective physical barrier and should not replace higher order controls such as systems of work that keep 1.5 metres between employees, regularly washing hands, and coughing or sneezing into an elbow or tissue.
The advice here is general. HSRs and workers in high-risk occupations are encouraged to contact their Union for more specific and detailed guidance.
This page is regularly reviewed and updated as further information becomes available and guidance is published.
The Employer’s Duty – s21 & s23
The Employer has a duty, so far as is reasonably practicable, to provide a safe working environment for employees and ensuring that the general public is not exposed to risks arising out of the conduct of their business. This means implementing and regularly reviewing the controls in place to minimise the spread of COVID-19. The state of knowledge regarding COVID-19 is being constantly updated, and consequently what constitutes best practice is also evolving. Employers need to reflect whether controls currently implemented adequately discharge their legal obligations under the Act in light of new information, including the use of masks or appropriate face coverings.
Duty to Consult – s35
When reviewing controls measures, and when making decisions about reviewing the need for and implementation of, new controls, the employer must consult with the elected HSRs and may also consult directly with employees.
This consultation around mask use needs to include particulars such as:
- How does the mandatory wearing of masks outside the home affect the workplace?
- Are the controls currently in place working as intended?
- Is the wearing of masks practicable at the workplace? Do they further reduce risk?
- Who should wear them and when? Are there workers for whom the wearing of masks is not practicable (for example, the Premier suggested that this may be the case for call centre workers)
- Does this control extend to non-employees who access the workspace?
- What type of mask or face covering is most appropriate? (this includes consideration of disposable vs reusable masks)
- From where will masks/face coverings be sourced?; and
- What training, information and supervision need to be provided to employees?
HSRs or employees who are concerned with the lack of a position concerning masks should:
- Contact their Union. Larger employers (e.g. Government departments) should already be working on how to incorporate mask use across the sector; and/or
- Commence consultation with the employer around the implementation of masks in the workplace (see consultation above)
- In the event that this consultation is unsuccessful on one or more particulars, an HSR may:
Q and As
1 - Is it compulsory to wear a mask?
On August 2 the Victorian government announced that everyone in the state must wear a mask or face covering when leaving the home for the four permitted reasons.
In an employment situation, unless it is not practical OR if there are medical reasons why someone cannot wear a mask/face covering, then a mask/face covering must be worn. The latest figures now indicate that the majority of Victoria's outbreaks are now coming from settings where people are working closely together - in fact up to 80 per cent of new infections, according to Premier Daniel Andrews.
Note: if an employer issues a direction that some or all staff need to wear masks, then it is an issue of complying with company policy and following reasonable management direction. A failure to comply may result in disciplinary action. A failure to wear a mask in other locations, such as shopping centres or on public transport, or even outdoors, can now result in a $200 fine.
It is also a requirement for workers in the aged care sector in Melbourne to wear surgical face masks (see Health Minister Greg Hunt’s media release)
If individuals have concerns about the need or practicality of wearing a face mask/face covering for some or all of their duties, particularly if these concerns were not addressed as part of consultation, then this should be raised in the first instance with their HSR as soon as practicable. In the event of a dispute we recommend following the steps above.
2 - If my employer decides it is not necessary to wear a mask, do I have the right to wear one anyway?
Generally: Yes you do.
If you are in Victoria, it is now law that everyone wears a face mask/face covering if you leave home. This includes at the workplace. So most, if not all, employers should now have organised for both workers and anyone coming in to the workplace to be wearing masks/face coverings. There would be very few exceptions.
The wearing of face coverings protects both the individual and those in the immediate proximity, be they coworkers or members of the general public, by providing an additional physical barrier to coronavirus. The Victorian government's decision to make it mandatory for those over 12 to wear a face mask/face covering when outside the home is clearly an attempt to control the numbers. Given that the majority of infections now seem to be work-related, it is now assumed that in most cases, this includes wearing a mask or appropriate face covering at work. Of course there will be situations in which this is not 'reasonably practicable'.
If employees are uncomfortable with the employer’s position that a face mask/face covering is not necessary, this needs to be discussed as soon as possible, or raised as a dispute in line with the next steps outlined above and include whether masks will be made available for those employees who wish to use them.
Note: there is increasing scientific evidence that the coronavirus may also be spread by aerosols - not only droplets. This is being further investigated by WHO. If this is the case, then physical distancing of 1.5 metres is inadequate. This is why everyone needs to be wearing a mask/face covering.
3 - If my employer mandates the use of masks, who needs to provide them?
The duty to provide a safe working environment so far as is reasonably practicable rests with the employer; it is their primary duty to provide PPE. This also enables the employer to control factors such as the mask meeting Australian standards of quality and consistency. Given the requirements employers need to supply an adequate number of disposable, or several re-usable masks.
Part of assessing what is reasonably practicable is determined by the ability to source masks. In the event that masks are unable to be sourced, in the short term it may be reasonably practicable for the employer to allow externally sourced masks (including home-made masks) as an alternative to no masks, but this is an unreliable way to control risk as the employer has ceded the ability to ensure that the masks are of the appropriate standard. Such controls should be phased out as soon as possible.
The employer’s duty does not end with the obligation to provide masks, but includes providing instruction on how to properly put on and take off the mask, ensuring a proper fit so that it is working as intended, and supervising its use. Employers should also ensure masks are properly laundered or disposed of as appropriate. See DHHS advice on Face Masks
If your employer is having issues sourcing masks, give them this link on the Business Victoria website: Face coverings in the workplace. From this page:
“Where the work or task requires the use of specific types of face coverings in the workplace, these must be provided by the employer. Where an employee seeks to provide and use their own face covering at work, an employer must ensure that it is meeting its obligations under the OHS Act.”
NOTE: if masks become damp or wet, they should not continue to be worn. Given that in Victoria masks now need to be worn when on the way to work and from work, it is likely that workers will need to have more than one mask, especially if the mask is a disposable one. It may be most practicable for workers to have their own masks for the journey to and from work, and for the employer to provide the masks necessary for use in the workplace.
4 - Can a business deny entry to people not wearing masks?
Businesses on private property can limit access/refuse service to the general public - and many are now doing so, even in states other than Victoria.
The wearing of masks or face coverings is now mandated in Victoria, including when entering workplaces. Employers whose employees deal with members of the general public should ensure that controls are in place, such as signage regarding the masks policy or extra security, in the event that a member of the public wishes to dispute the requirement to wear a mask to ensure a workplace that is safe and without risks to health for its employees.
An employer who cannot restrict access to the general public must have other controls in place in recognition of the fact that as a result of their decision not to, or inability to, mandate face masks, they have increased the risk of exposure to their employees. However these should be very rare situations.
If the employer does make the decision that everyone entering the workplace (eg clients, customers, and so on) must wear a mask, then it is up to the employer to enforce it. The enforcement of mask wearing may in itself present an unacceptable risk to health and safety for public-facing workers, and it should not be up to them to police it. A number of large food retailers have now made it mandatory for their customers to wear masks prior to entering the stores - they have a staff member at the entrance checking and handing out masks for those not wearing them.
However, in Victoria, following the requirements announced on August 2, most, if not all, people will be wearing masks.
5 - What about the risks I face getting to and from work?
Both VTHC and the RTBU called upon the Government to make it mandatory for passengers to wear masks on public transport - the announcement of July 19 that everyone over the age of 12 wear a mask when leaving the home now means that everyone on public transport or in taxis or other hire vehicles must be wearing masks. The same applies to people waiting in queues, on platforms and so on. The masks should not be removed once someone alights from a bus, tram, train or hire car.
Quality of masks
A coalition of workplace health and safety related organisations across Australia and New Zealand, and the ACTU has called for the urgent establishment of a register for approved respirators (aka face masks). The group describes the presence of non-compliant, fake and faulty disposable masks as an immediate threat to the health and safety of workers.
The current situation with 'fake' masks being used even in the health care sector has highlighted that the regulation of PPE is grossly inadequate to ensure that the masks that Australian workers are using are up to the task.