New Alert Level 2 requirements bring greater complexity for employers. Testing, vaccinations and mask use are just some of the areas employers are now required to navigate, and while the rules seem clear at first glance, the issues become complex when employees are exempted. We explore some of the complexities of mask wearing exemptions in this article.

Employees working for public facing businesses must now wear face coverings (masks) whilst at work.

The starting point for employers and employees is clear: ‘all public-facing employees must wear masks whilst at work‘. However, this has left some business owners wondering what happens if their employees cannot wear a mask.

What happens if my employee has an exemption from wearing a mask?

Exemption cards are primarily contemplated for disability or health conditions that make wearing a mask impractical (working safely at alert level 2). It is therefore important that employers consider why an employee is unable to wear a mask and if any other steps might need to be taken to ensure their safety whilst at work.

The steps an employer would have to take depend on each case, but in all likelihood, when an employee is exempt from wearing a face mask then it will be important to consider the following:

1. whether there are any opportunities for additional PPE to be provided;
2. if other health and safety measures could be taken (a good example of an alternative method could be the use of Perspex screens at counters and for the employee to remain on the till, if relevant);
3. whether the employee can be redeployed into a non-customer facing role whilst we remain at Alert Level 2.

If my employee has an exemption from wearing a mask, can I ask them not to work?

Given that the Government is allowing exemptions from mask wearing, it is unlikely that an employer will be able to prevent an employee from working due to them being unable to wear a mask. Employers and employees will however need to consider the options above and ask how they might best address the risk. Open and clear discussions should be engaged in by both parties around what additional PPE or other steps might be reasonable in the circumstances.

The obligation imposed by the Employment Relations Act 2000 is to act in a way that a reasonable employer could in all the relevant circumstances, and this obligation continues to apply. In practice, employers will need to act on a case by case basis and devise an approach for employees depending on their health considerations and the businesses ability to make reasonable accommodations around their exemption.

Privacy considerations

An employee’s privacy rights must also be respected and an employee’s reason for exemption is considered personal information under the Privacy Act 2020. We would advise that employers do not discuss an employee’s personal reasons for an exemption with other employees or customers, unless the employee has given consent for them to do so.

We would however advise that the employer require their employee to carry exemption cards, if relevant, so that this can be provided when needed.