Following the introduction of the mandatory use of face masks in public places by the government on 1 December 2020, many employers have made it compulsory for their employees to wear a face mask while working. Even before this was made mandatory by the government, there were employers who already required their employees to wear a face mask, for example in places where the 1.5-metre distance could not always be properly observed. The legal basis is the employer’s right of instruction. But the question that remained unanswered was to what extent an employer could also impose disciplinary sanctions on an employee (e.g. no right to wages or even dismissal) if he or she refused to wear a face mask. On 13 January 2021, the District Court of Midden-Nederland addressed this question and handed down its judgement.
This case concerned an employee who worked as a delivery driver for a confectioner. His work consisted of delivering/transporting goods to/between different branches of the employer and collecting and delivering goods from suppliers.
In October 2020, the employer imposed on all of its employees the obligation to wear a face mask during work. The employer based this obligation to wear a face mask on its instruction right (7:660 Dutch Civil Code). The employee refused to comply, after which the employer suspended payment of wages. The employee was denied access to work until he was prepared to follow the employer’s instruction. The employee then took the matter to court, as he disagreed with this. The employee felt that the face mask would hinder him too much in his work, while, according to him, in the course of his duties he hardly ever visited places where he would not be able to keep a 1.5-metre distance from his colleagues or suppliers. Moreover, the employer had promised him that he would not have to wear his face mask when alone in his transport bus.
The judge has ruled that the employer was indeed allowed to impose on its employees the obligation to wear a face mask. The employer is obliged to ensure a safe and healthy working environment. The employer also has a business interest. After all, if employees are ill or have to go into quarantine, their wages must be continued. Despite the fact that the effectiveness of the face mask is disputed, it is a socially accepted means and this means can contribute to the two aforementioned goals (safe and healthy work environment and business interest). According to the employer, the employer does not have to make a distinction between the different functions, since in order for a face mask to be effective, it is important that everyone in the building wears one. According to the judge, the infringement on the personal privacy of this employee is very limited, since he does not have to wear his face mask when he is alone, driving his transport bus.
What does this mean for you as an employer?
This ruling shows that in certain situations the employer is allowed to impose an obligation to wear a face mask. Although this causes an infringement on the employee’s privacy, according to the judge this is justified in many cases. After all, the employer must ensure a healthy and safe working environment and the employer’s business interests also play a role. If an employee refuses to wear a face mask, the employer has good arguments for suspending wages and denying the employee access to work.
Do you have questions about the obligation to wear a face mask? We are happy to assist.