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face coverings – FAQs for retail, hospitality and leisure

23 October 2020

Please note: the information contained in this legal update is correct as of the original date of publication.

September has seen the introduction of compulsory face coverings for staff (save where exemptions apply) working within the retail, leisure and hospitality sectors in England in attempts to reduce the spread of coronavirus.

frequently asked questions

Employees who work in a “relevant place” (see below) and those who provide services to the person responsible for the relevant place, will be covered unless they are exempt (see below). However, they must be in a part of the relevant place which is open to members of the public and come, or be likely to come, into close contact with a member of the public. Therefore, individuals who work purely “behind the scenes” (or outside the public opening hours of the relevant place) will not be covered.

Schedule 3 to The Health Protection (Coronavirus, Wearing of Face Coverings in a Relevant Place) (England) Regulations 2020 provides a list of what amounts to a “relevant place”. This includes (but is not limited to) shops, enclosed shopping centres, restaurants with table service, bars, banks, building societies, post offices, public areas of hotels, concert halls, theatres and cinemas.

There are various reasons why an individual may be exempt from wearing a face covering. Some of the more likely applicable reasons for retail, leisure and hospitality staff are: that they cannot wear a face covering due to a physical or mental illness or impairment, or disability, or that it would cause them severe distress; that they are providing assistance to someone who relies on lip-reading to communicate; or that they are removing a face covering to avoid harm (or the risk of harm) to themselves or others.

Whilst “disability” is defined in the Equality Act 2010 (and requires there to be an impairment), it is included as a separate category to “impairment”. There is no guidance and no rules about how to interpret what “impairment” would mean where it does not amount to a disability, or what the threshold for “severe” distress would be. This may mean members of staff are unclear as to whether the exemptions apply to them, and/or make it difficult for challenges to be made under the legislation.

Guidance has clarified that staff do not need to wear a mask if they are behind a physical barrier or protective screen, provided that that barrier/screen adequately mitigates risks.

Employers can explain to staff what the exemption categories are and ask them to wear a face covering to meet legal requirements if those categories do not apply to them. Members of staff do not, however, need to provide written evidence of any applicable exemption, or even identify to their employer which exemption applies – confirming that they are exempt would be sufficient.

Similarly, members of staff who are exempt do not need to justify the fact that they are not wearing a face covering to members of the public; however, this does not mean that they will not be challenged in practice. Some members of staff may prefer to carry an exemption certificate or a badge to show in response to questions. There is no prescribed form for this but there are some templates available here. Employers will need to support exempt members of staff if any concerns or complaints are made by members of the public.

Under the legislation mentioned above, it is the individual who would be guilty if an offence if they fail to wear a face covering when they are required to do so. It would also be the individual who was responsible for paying any financial penalty imposed.

However, under some of the government’s Working Safely During Coronavirus guidance, there is reference to employers being obliged to ensure that members of staff who are required to wear face coverings do so. This is framed as being part of their health and safety obligations to ensure a safe place of work, despite face coverings not previously being required. Employers will, therefore, need to ready to investigate and deal with situations where an employee refuses to wear a face covering but is not asserting that they are exempt. If you would like to discuss any particular situations that arise, please let us know.

This is a little unclear. On the one hand, the obligation to wear a face covering is being imposed by the State, rather than the employer. And certainly the current DfE approach to face coverings within the education sector is to state that, given their wider use in society, members of staff should have access to their own face coverings. It was only envisaged that a small “contingency” supply should be available to anyone struggling, or who had forgotten theirs.

However, some (but not all) of the government’s workplace guidance applicable to the retail, leisure and hospitality sectors states that where face coverings are required, businesses are expected to provide these are part of their health and safety obligations. For example, the guidance for shops and branches, and restaurants, pubs, bars and takeaway services includes this wording; it is not included within the guidance for hotels and other guest accommodation. It will therefore be important to check which guidance is applicable for your business.

Any face covering provided by employers will need to meet the government guidance and be in line with health and safety requirements as to suitability. This means that the face covering should:

  • cover the wearer’s nose and mouth while allowing them to breathe comfortably;
  • fit comfortably but securely against the side of the face;
  • be secured to the head with ties or ear loops;
  • be made of a material that the wearer finds to be comfortable and breathable, such as cotton;
  • ideally include at least two layers of fabric (the World Health Organization recommends three depending on the fabric used); and
  • unless disposable, it should be able to be washed with other items of laundry according to fabric washing instructions and dried without causing the face covering to be damaged.

Employers should be mindful of their duty to make reasonable adjustments for disabled members of staff who may feel able to wear a face covering but require a particular type.

Employees should be able to wear their own face covering if they prefer. Employers who wish to impose any conditions or restraints (for example, ensuring face coverings are consistent with any uniform/branding and/or avoiding any inappropriate text/images) should be clear on any workplace rules that will apply in advance.

Yes, employers should provide guidance on how to use face coverings safely. The guidance states that this means employers should tell workers:

  • wash your hands thoroughly with soap and water for 20 seconds or use hand sanitiser before putting a face covering on, and before and after removing it;
  • when wearing a face covering, avoid touching your face or face covering, as you could contaminate them with germs from your hands;
  • change your face covering if it becomes damp or if you’ve touched it;
  • continue to wash your hands regularly;
  • change and wash your face covering daily;
  • if the material is washable, wash in line with manufacturer’s instructions; if it’s not washable, dispose of it carefully and appropriately (see below); and
  • practise social distancing wherever possible.

The current government guidance states that disposable face masks can simply be put into normal waste bins and do not need to be separately bagged, as initially suggested. However, employers may prefer for health and safety best practice reasons to designate a particular bin or binds for disposable masks. Whichever approach is adopted, employers will need to ensure that bins are emptied regularly and are not allowed to overflow. Employers should also remind their staff that masks should not be place in any recycling bins.

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The content on this page is provided for the purposes of general interest and information. It contains only brief summaries of aspects of the subject matter and does not provide comprehensive statements of the law. It does not constitute legal advice and does not provide a substitute for it.

Sarah Hooton

Sarah Hooton

Professional Development Lawyer

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