With face masks now mandatory in Victoria and strongly recommended in New South Wales, we have seen an increase in the number of anti-mask activists portrayed in the media over the past few weeks. From social media posts to mobile phone footage shown in media reports, incidences of people refusing to wear a mask are on the rise.
While at the time of writing we are yet to reach a ‘mandatory’ ruling on the wearing of face masks in New South Wales, it does seem likely to eventuate at some stage and these incidents raise a multitude of questions for both individuals, employees and employers alike.
When am I required to wear a face mask in New South Wales?
At the time of publication, guidelines from the NSW Government strongly recommend people in New South Wales wear a face mask in situations when: it is hard to maintain 1.5 metres of physical distance from others, you are in an area where there has been community transmission, you are in a high-risk indoor area such as public transport and supermarkets, you are caring for vulnerable people, and when you are working in a high-risk indoor area such as a café or restaurant.
However, it is important to note that private landowners/occupiers are permitted to set their own reasonable entry rules and safety requirements to protect people on their property.
Can a business in New South Wales refuse me entry if I choose not to wear a mask?
Yes. According to law a business can make wearing a mask a condition of entry – in the exact same way a sporting ground can enforce bag checks and a bar can enforce dress codes.
Not only are business owners within their rights to enforce conditions of entry to ensure the safety of workers and customers, law requires them to take all reasonable actions to ensure the safety of persons at the workplace. This includes identifying hazards and risks and doing what is reasonably practicable to eliminate or minimise those hazards and risks.
As an employer, what are my obligations to protect employees from potentially abusive or aggressive anti-mask activists?
Abuse from customers can pose a risk to the health and safety of employees, particularly if it occurs frequently – as has been the case in some anti-mask incidents.
Employers of staff who may be confronted by anti-mask activists have legal obligations under the Work Health Safety Act and the Fair Work Act 2009 to protect the health and safety of their employees.
- Employers could consider the following to help address some of the risks:
- Establish and train staff in protocols for identifying and dealing with abuse;
- Consider implementing additional security;
- Issuing public statements about your businesses’ policies regarding:
- zero tolerance approach to abusive behaviour; and,
- restricting or banning those who engage in abusive behaviour from the premises.
What’s Next?
The situation continues to be highly dynamic with restrictions and health guidelines continually changing. Businesses need to constantly monitor the situation and be ready to adapt their plans based on new advice.
With more than 60 years’ experience in commercial and employment law, Tonkin Drysdale Partners is here to offer supportive and clear advice to help local businesses through the current challenge.
