Mask Mandates at work

Dec 6, 2021

Did you know?

The Fair Work Commission was recently required to determine whether a direction that employees wear a face mask was a lawful and reasonable direction. The employer airline had a ‘mask mandate’ requiring cabin crew to wear a mask while flying. The employee cabin crew refused to do so and her employment terminated.

It was decided by Deputy President Lake that the ‘mask mandate’ was a lawful and reasonable direction, in the context of the COVID-19 pandemic. The employer had an ‘exemption’ policy in place. The employee’s arguments that the ‘mask mandate’ was bullying, harassment or discrimination failed.

On the issue of whether the direction was lawful, Deputy President Lake said that to be lawful there does not need to be a positive statement of the law to support it; it is sufficient that it is not illegal and the direction must fall within the scope of service of the employee.

On the issue of whether it is reasonable, this depends on all the circumstances, including the nature of the employment; it does not necessarily have to be the most appropriate – so there is room for error on the part of the employer.

During this COVID-19 pandemic, what is ‘lawful and reasonable’ will depend on the circumstances. With any mandate, the answer will lie in the balance between the rights of the employer and those of the worker, given the circumstances. As circumstances of the pandemic change, so will this answer.

If it does not seem ‘reasonable’ to you, it may not be – it is best to seek legal advice.


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