Employers have right to continue mask-wearing requirement, solicitor says

Employers have right to continue mask-wearing requirement, solicitor says

James Cox

While the mandatory mask-wearing requirement is set to lift from Monday, February 28th, some employers will continue to require their staff to wear a mask and are within their rights to do so, according to an employment law solicitor.

A recent survey from human resource consulting firm Peninsula Ireland asked employers what their stance would be when the mask mandate is lifted.

Thirty-eight per cent said they would leave it up to staff on whether they would continue to wear a mask in the workplace, 32.7 per cent said they would keep masks as a requirement, and 28.5 per cent said they would ditch the old Covid rules.


Employment law solicitor Richard Grogan told that employers who choose to continue with a mask-wearing requirement in the workplace are within their legal rights to do so.

He said all they have to do is conduct a health and safety assessment.

"The employer has to put in a health and safety assessment, but that’s not the hardest thing to do, they simply say we have immunocompromised people, we don’t know if everyone is vaccinated, and I can’t ask, therefore I’m taking a conservative line on it," he explained.

"They’re entitled, if the employer says this is a health and safety issue, they are entitled to be conservative, being conservative is the basis for health and safety, that’s why there are screen guards."


He added: "They won’t be getting rid of hand sanitiser, this is just another level where some employers will be looking to protect all their staff.

"While the mask mandate may be finished, the reality on it is there are going to be employers with immunocompromised staff, staff who are concerned, there are still 7,000-10,000 Covid cases per day. There will be employers from a health and safety perspective who will be saying ‘look, this isn’t just finished’."

Health and safety

Mr Grogan said every employer is entitled to make a decision on face masks based on their health and safety assessment, and explained that it is no different to safety equipment on a building site.

He said there is likely to be some confusion as the advice is that it is safer to wear a face mask in groups, although it will no longer be mandatory.


"This doublespeak coming out of the Government’s mouth, employers are left in this conundrum as to what they do. The employer has to take reasonable approaches for the purposes of protecting everybody’s health, this is no different I think than employers making sure people wear safety boots. You go onto a construction site, you have to wear a hard hat, if I go on as a solicitor I still have to wear safety boots, a hard hat and a reflective jacket, it’s health and safety.

"There will be some employers, particularly those who have older and vulnerable employees, I can see some shops and restaurants saying they will require staff to wear masks unless they have a medical exemption."

It’s not really legal, but it is one that will result in legal cases if I can put it that way.

He said employers will be looking at the issue in terms of keeping staff safe, and keeping Covid absences to a minimum.

"We had awful break-outs in the meat and food industry, the last thing you want if you’re running a restaurant or whatever is everyone out with Covid. Employers are looking at health and safety but also keeping their business open."

Mr Grogan also pointed out that there will be employees with genuine concerns about masks no longer being required in the workplace.

"Some will be legitimate, others will be a way of trying to negotiate working from home. From the point of view of people with genuine concerns it’s worrying.

"There will be employers with a genuine concern for their staff, and employees with a genuine concern for their health and the health of others.

"I understand where the Government is coming from, they want businesses open, the country moving, but I think it hasn’t been thought out as to how many people are still very concerned, and who may have underlying health issues."

Mr Grogan said mask-wearing is not a legal issue per se, but he expects legal issues to arise.

"The main thing is people need to be respectful of each other, employees have rights but also duties to their colleagues. There needs to be give-and-take on mask wearing, it’s not really legal, but it is one that will result in legal cases if I can put it that way."