Dismissed with a Mask Exemption

Dismissed with a Mask Exemption

The individual abbreviated CAE (granted name suppression), worked for Hexion as a Chemical Process Operator. Hexion implemented a policy making it mandatory for employees to wear masks to assist against the spread of COVID-19 – however, the issue was that CAE had a mask exemption.  

Mask requirements in workplaces have been a prevalent issue recently (although perhaps waning now, given the relaxation of requirements and the abolishment of the traffic light system). The government has accepted masks are an effective way to prevent the spread of COVID-19 and many workplaces have adopted the same stance, mandating mask use as part of their COVID-19 strategy.  

However, there are people unable to wear masks in particular circumstances, or at all. This can cause difficult situations to arise when a mandatory mask-wearing policy is in place, balancing the individual circumstances of the exempt against the employer’s health and safety obligations. Often a person is exempt for medical reasons – a disability. This increases the complexity and sensitivity of the situation – how far can an employer inquire into the basis for the mask exemption (how much personal medical information does an employee need to disclose), and is a mandatory mask policy which does not contemplate exemptions discriminatory (given ‘disability’ is a protected ground pursuant to the Human Rights Act 1993).  

CAE and Hexion discussed the situation – correspondence was exchanged back and forth. Ultimately, however, Hexion decided to dismiss CAE due to his refusal to wear a mask – CAE promptly applied for interim (and permanent) reinstatement orders from the Employment Relations Authority.  

The Employment Relations Authority considered the application. It is important to note the substantive issues have not yet been fully considered and a further hearing is yet to take place, however, on 15 July 2022 a decision was made to grant CAE interim reinstatement – Hexion was ordered to allow CAE to return to work:  

1. Hexion could, at its discretion, reinstate CAE only to the payroll and not require him to work; or  
2. if it did require CAE to work, it must be on the condition that he wear a face shield only (not a mask – CAE was able to wear a face shield), took a RAT daily, observed strict handwashing standards, and reported and stayed away from work if he developed COVID-19 symptoms.  

We are awaiting the Authority’s determination on the substantive issues – the substantive matter has not yet been decided. However, as part of its assessment of the reinstatement application, the Authority made several preliminary comments about the case – the Authority did not consider the case for unjustified dismissal or permanent reinstatement to be weak, determining CAE does have an arguable case of unjustified dismissal, with some aspects quite strongly arguable in its opinion.  

Over the course of COVID-19, we have assisted a full range of both employees and employers with these types of issues – pursuing justice for employees who have been unfairly treated in relation to COVID-19 issues and helping employers successfully navigate these complex issues.

If you have been been dismissed with a mask exemption or are facing a difficult situation at work, please get in touch with the Watermark team, we are happy to discuss your situation. 

Jonathan Charlton (Senior Solicitor/Practice Manager)