When a store worker was not wearing a mask, a woman was told the employee had a medical exemption, but said she did not feel safe.

Welcome to Sisters In Law, the weekly news.com.au column that solves all your legal problems. This week, our resident attorneys and sisters Alison and Jillian Barrett of Maurice Blackburn are helping someone who wants to know if workers in healthcare, retail and hospitality and other customer-facing roles can be required to wear a mask.

Question:

I am at high risk of getting very sick from Covid-19, so I limited my movements as much as possible during the lockdown. I wear a mask and social distancing, and by and large the others do the same.

However, I recently went to a store to pick up some essentials and was shocked to see an employee serving customers without a face mask. When I complained to the store manager, he said the worker had a medical exemption.

Surely someone who deals with people should never be exempt from wearing a mask? It made me feel in danger and the other customers seemed shocked as well. Can workers in healthcare, retail, hospitality and other direct customer roles be required to wear a mask? – Susanne, NSW

Reply:

Mask rules are now in place in many states, including New South Wales where you are.

Wearing a mask is compulsory in establishments such as supermarkets, shopping malls and retail outlets, unless a person has an exemption.

Customers and staff are subject to the same rules regarding the wearing of masks and any exceptions.

In New South Wales, exemptions from the mask rules apply to people with an illness, physical or mental health problem or disability, making the wearing of a mask inappropriate fitted face.

Examples might include someone with a skin condition, intellectual disability, autism, or trauma.

If a person is exempt from wearing a mask, they must wear either:

1. A medical certificate or letter signed by a licensed healthcare professional (such as a physician) or NDIS licensed provider, or

2. A solemn declaration

A statutory declaration must identify the person’s disability, illness or state of physical or mental health and state that it renders wearing a tight-fitting face covering inappropriate.

A police officer may ask a person to confirm the legal reason for not wearing a mask if they are otherwise in a situation where masks are mandatory.

The person not wearing a mask must present the police with proof of exemption, in particular by producing proof of his name and address.

The reason for deviating from the mandatory mask rules is not always visible or obvious, so you should be respectful to those who do not wear masks, as well as their employers.

Employers may, in some situations, try to balance the need to comply with public health orders against their obligation not to discriminate against an employee because of a disability or health problem.

Some companies provide a lanyard or badge for staff and customers noting their exemption, so that others do not question their not wearing a mask, but this is not a requirement or formal proof of exemption.

If the worker did not have a valid exemption for not wearing a mask, he could face a maximum sentence of six months in jail, a fine of up to $ 11,000, or both.

Police could also impose an immediate fine of $ 1,000 on the worker for violating a public health order.

In addition, fines on the spot can be imposed on people in the event of non-compliance with an order not to wear or not to wear a mask.

These fines range from $ 40 for a person 15 and under to $ 500 for a person 18 and over. Children 12 and under are exempt from the mask rules.

An employer is required to ensure that his staff respect public health instructions, including the wearing of masks, unless otherwise specified.

Failure to meet these obligations could result in a penalty of up to $ 55,000, and an additional $ 27,500 for each day the violation continues.

If you are concerned that there has been a rule violation, you can report to Crime Stoppers.

This legal information is general in nature and should not be construed as specific legal advice or relied on. People requiring specific legal advice should consult a lawyer.

If you have a legal question that you would like Alison and Jillian to answer, please email [email protected]

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