I’ve noticed an increase in the use of face masks in public settings, which made me wonder about whether this may result in venues asking customers to wear them and what the current state of the law is. During the pandemic this was a huge issue for disabled consumers who could not safely wear them but also for businesses trying to understand how they should protect other customers and staff whilst complying with government safety requirements.
In my role as a lawyer specialising in disability rights, I thought it might be useful to check up on where we are now.
On 27 January 2022 The Health Protection (Coronavirus, Wearing of Face Coverings) (England) Regulations 2021 expired. This means that there is no statutory basis to require a person to wear a face mask, although a service provider or business may make it a term or condition of access to require one under contract law.
Many healthcare settings still require staff and visitors to wear face masks. This is especially relevant when anyone on their premises may have a higher risk of becoming seriously unwell from COVID-19 or of any other respiratory illnesses which may affect their employees.
However, these policies must not be absolute otherwise they are likely to be in breach of the Equality Act. The same policy applied equally to everyone is likley to lead to disabled people unable to wear a mask for genuine reasons relating to communication, anxiety or respiratory issues being subjected to a detriment. If you have an impairment which creates a adverse impact on your day to day life and has existed for 12 months (fluctuating or constant) then you are considered by the Equality Act as disabled and such action would be considered to be Indirect discrimination. In those circumstances reasonable adjustments should be built into the policy to allow you and other disabled people in similar situation as you to access the service in a different way.
If you are told to wear a mask, it’s worth checking in with us to see whether we can help you challenge that policy. We have a free downloadable guide to how to complain effectively.
If on the other hand you are told to remove a mask which you are wearing for reasons relating to disability, you may likewise have a case that you should be allowed to wear one.
Overall, the message is that face masks remain with us and are important as a means of infection control. There may be circumstances where you need to enforce your rights to wear one, and where you need to enforce your rights not to. The legal position for service providers as ever is to model different customer and staff needs and to consider a variety of adjustments to balance those adjustments with legitimate health and safety needs.
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