Friday, 24 July 2020

Update 9: Mandatory face coverings – What do Victorian employers need to know?

On Sunday 19 July 2020, Victorian Premier Dan Andrews introduced a mandate on face coverings for metropolitan Melbourne and Mitchell Shire, which came into effect at 11:59pm on Wednesday 22 July 2020.

In order to give effect to this mandate, the Chief Health Officer has released the new Restricted Activity Directions (Restricted Areas) (No 3) (Restricted Activity Directions) and Stay at Home Directions (Restricted Areas) (No 4) (Stay at Home Directions), which apply to metropolitan Melbourne and Mitchell Shire.

The Stay at Home Directions provide that residents of metropolitan Melbourne and Mitchell Shire may only leave home for one of four reasons: for necessary goods or services, care or other compassionate reasons, work or education, or other specific reasons, and that they must wear a face covering at all times. There are some limited exemptions and if one of these exemptions applies, people must still carry a face covering with them when they leave home for one of the four reasons.

A face covering can include a face mask or face shield designed or made to be worn over the nose and mouth to provide the wearer protection against infection. The fine for not wearing a face covering without a lawful excuse is $200.

For employees that are permitted to perform work at the employer’s premises (where it is not reasonably practicable to work from home), the Restricted Activity Directions direct that the employer must also take “reasonable steps” to ensure the employee wears a face covering at all times when working at the employer’s premises.

However, the Directions confirm that an employee is exempt from the requirement to wear a face covering where:

  • they have a physical or mental health illness or condition, or disability, which makes wearing a face covering unsuitable, such as obstructed breathing, a serious skin condition on their face, an intellectual disability, a mental health illness, or trauma; or
  • they are communicating with a person who is deaf or hard of hearing and visibility of the mouth is essential for communication; or
  • the nature of an employee’s work means that wearing a face covering creates a risk to their health and safety; or
  • the nature of an employee’s work means that clear enunciation or visibility of the mouth is essential, such as teaching, lecturing, or broadcasting; or
  • they are a professional sportsperson when training or competing; or
  • they are travelling in a vehicle alone or where each other person in the vehicle ordinarily resides at the same premises; or
  • they are consuming food, drink, or medicine; or
  • they are asked to remove the face covering to ascertain identity, such as by police, security, bank of post office staff; or
  • for emergency purposes; or
  • required or authorised by law; or
  • doing so is not safe in all the circumstances.

Additional exemptions apply outside of the workplace context (for example, if a person is jogging or running).

As for what “reasonable steps” an employer must take, there is limited guidance at this stage as to what “reasonable steps” involve, in addition to ensuring employees wear face coverings at all times at work. This could also include emphasising the importance of employees wearing face coverings when travelling to and from work. In our view, this is unlikely to require an employer to provide face coverings to staff. However, it would be best practice for employers to have disposable masks available in the workplace.

We remind employers that the Premier has indicated that WorkSafe, Emergency Management Victoria and Victoria Police will carry out inspection and enforcement blitzes in workplaces across the state in response to the apparent prevalence of current outbreaks being related to workplaces. The blitzes will likely include a focus on face coverings in addition to 1.5m distancing and hygiene rules. Also, a failure by employers to comply with the Directions to ensure employees wear face coverings at work can attract significant penalties.

For further information, see the Department of Health and Human Services’ guidelines or follow HR Legal’s updates.

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This article was produced by HR Legal. It is intended to provide general information only in summary format on legal issues. It does not constitute legal advice, and should not be relied on as such.

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