Mask Discrimination in the Workplace

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Is it against the law for an employer to discriminate against employees who have a disability or medical condition that prevents them from wearing mask?

The short answer is “Yes, it may be unlawful. However, it depends on the particular circumstances”.

If you have a disability or medical condition that affects your ability to wear a face mask, and you have alerted your employer to this, but you face disciplinary action or dismissal for not wearing a face mask, this may amount to unlawful discrimination under the Equal Opportunity Act (“the Act”).

This is because under the Act, employers are prohibited from discriminating against an employee or a prospective employee with a disability.

Employers are also required to make reasonable adjustments for employees with a disability.  Allowing an employee with a relevant medical condition to work without a face mask is an example of a reasonable adjustment.

Unfortunately, people unable to wear masks have found themselves discriminated against at work and in our community generally and many complaints have been lodged with the Victorian Equal Opportunity and Human Rights Commission. It is likely many others have suffered in silence.

Understanding not judgement- why some people don’t wear masks

Early on, when mask wearing became mandatory for most people Victoria’s chief health officer Brett Sutton stated that some people:

“are legitimately not able to wear masks so please don’t vilify individuals or don’t make the assumption they are simply stubborn”.

Holly Seale, University Lecturer UNSW in her article “It’s easy to judge. But some people really can’t wear a mask”, said;

“to reduce the risk of inflammatory or inappropriate comments being made, we need to understand some of the reasons why [people don’t wear masks]:

• autism — some people with autism spectrum disorders find covering the nose and mouth with fabric can cause sensory overload, feelings of panic, and extreme anxiety

• disability — some people with a disability can find wearing a mask difficult if they cannot remove one from their face without help. For example, someone with cerebral palsy may not be able to tie the strings or put the elastic loops of a face mask over the ears, due to limited mobility

• post-traumatic stress disorder, severe anxiety or claustrophobia — people with these conditions can find wearing a mask terrifying and may not be able to stay calm or function while wearing one

• hearing impairment — people who are deaf or hard of hearing, or those who care for or interact with someone who is hearing-impaired, rely on lipreading to communicate. So wearing a face mask can be a challenge

• facial deformities or physical trauma — may be incompatible with wearing a mask.

Link for the full article: It's easy to judge. But some people really can't wear a mask (theconversation.com)

Circumstances which may lead to Discrimination being Ok

An employer may rely on exceptions under the Equal Opportunity Act to argue the discrimination was lawful in the particular circumstances.

There is an exception which allows discrimination against people with a medical condition or disability if it is reasonably necessary to protect the health and safety of any person, or the public generally. The responsibility falls on the employer to prove that these exceptions apply.

Some issues which may be considered include:

 how long people generally stay inside the workplace;

 whether it is possible to stay 1.5 metres away from each other inside the workplace;

 the type of people who visit the workplace and whether there is a heightened risk they will suffer severe symptoms if they contract COVID-19 (for example, people over 60 or people with respiratory conditions);

 whether alternative measures could have been put in place to protect staff and customers;

 the rate of community transmission at the time the discrimination occurs.

What to do if you think you've been discriminated against

If you have been discriminated against by your employer for not wearing a mask, we need to consider your particular circumstances and whether or not the employer has a right to demand you wear a mask due to the risks involved in your particular workplace.

If we do consider the conduct of the employer to be discriminatory then a complaint can be made to the Victorian Equal Opportunity and Human Rights Commission and/or an application can be made to VCAT. Depending on your circumstances you may also be able to lodge a claim under the Fair Work Act.

It is important to get advice early as in relation to unfair dismissal you only have 21 days to lodge a claim. You have 12 months to lodge a claim under the Equal Opportunity Act.

Much of this information has been taken from the Victorian Equal Opportunity and Human Rights Commission webpage Victorian Equal Opportunity and Human Rights Commission | Victorian Equal Opportunity and Human Rights Commission You can find FAQ to a range of mask discrimination topics outside of work on their webpage.

Photo by Waldemar Brandt on Unsplash