Although blanket obligation to wear respiratory protecting equipment, which were adopted by emergency measures of the Czech Government and the Ministry of Health, does not last anymore with a few exceptions, some employers still demand wearing of masks in the workplace from employees. What is their legal reason?
The employer has a responsibility to protect safety and health of workers at work and he must adopt measures to prevent risks. Those risks in connection with the spread of disease COVID-19 differs depending on size and type of business organization, but also on location of the workplace and occurrence of disease in the area. In the workplaces where is not possible to ensure the security otherwise, for example distance between workers, home office, the employer, as a result of the assessment of the risk, can decide that wearing of respiratory protecting equipment (masks) is a necessity. This is the most extreme method to prevent risks.
The employer should make his decision on the grounds of the professionally processed Occupational Health and Safety (OHS) documentation in which is the list of personal protecting equipment processed on the grounds of assessment of the risk and concrete conditions of work. The employer is obliged to comprehensibly inform employees about these safety measures, and he must allow debate about these measures with employees, their health and safety representatives or union, if there is any. Also, it has to be made detailed system regulating conditions of using of protecting equipment (distribution, storage, rubbish, etc.)
The employer must provide masks as protecting equipment to employees for free and providing of them can not be swap for money. In any event, the employer can' t demand from the employee to buy a mask on his own.
Protecting equipment shall not to endanger health of employees and the employer should, in relation to work, adopt additional measures, which would eliminate arduous working conditions of employees caused by wearing of masks, for example to implement regular breaks when employees can take masks off.
What if employee can' t wear a mask for health reasons?
If the employee can' t wear a mask for health reasons (rash, breathing problems, etc.) and he proves this by medical report, is a duty of the employer to ensure a workplace that he can work without endangering his health (for example in separated room, where he doesn't have to wear mask). If the employer is unable to ensure this, it is a work obstacle on the side of employer, so employee gets a compensation of average gross monthly earning.
The employer can also transfer the worker for time necessary, without his consent, to alternative work, which would be more suitable for him because of his state of health and his capability. If the employee is transferred to alternative work, which is less paid, he is entitled to additional payment equal to the average gross monthly earning he had before transfer.
What if employee refuses to wear a mask?
In case, the obligation of wearing a mask is introduced on workplace by employer in accordance with law and the risk, for which is introduced, remains, the employee must wear a mask. If the employee refuses, he breaks obligation established by law. Because of this reason, is possible to terminate an employment contract for serious infringement (more precisely – serious endanger of other employees in relation to epidemiologic situation) by notice or by dismissal without notice. In all cases, the employer should immediately prevent the entry of employee who refuses to wear a mask in the workplace to ensure the health of other employees.
Adopting an obligation to wear a mask in the workplace is a quite big interference into personal integrity of employees, so it is necessary to act in accordance with the law. First of all, is necessary to consider the risk of spread of disease COVID-19 (if in whole district or region is just a few cases, it can be assumed that risk is small) and a possibility of introducing of other collective or organisational measures (to take a temperature, sufficient distances, home office, etc.)
Author: Aneta Koubková