Situation’s change but somehow remain the same. Earlier this year we were discussing respirators for firefighters (Donated respirators for RFS firefighters (updated 12 January 2020) (December 29, 2019) now it’s facemasks for health practitioners but the issues are similar in particular can someone direct another not to wear a facemask. This question comes from the same person who was raising funds to buy respirators and who has now had:
…an influx of nurses and doctors contacting me telling me that they have been told that they are NOT ALLOWED to wear masks at hospital if they are not directly in contact with co-vid patients.
Excuses include “it will stop you social distancing” or “you’re not in the areas affected” or “you don’t need them”
To date I know of two midwife’s who contracted co-vid having never been on the ‘exposed’ wards and two nurses who also worked in wards unrelated to Co-vid.
These nurses were told specifically not to wear masks.
What is the legal position on such orders?
Can they demand a nurse or Dr remove PPE?
The answer is going to be, as it so often is, ‘is the demand reasonable in all the circumstances?’
Now many people say they are told or directed to do things when this is not the case. Eg during the fires and the respirator issues I was told the RFS was directing people not to wear respirators, which the RFS denied (see that earlier post). Or that people were being directed to sign a disclaimer which again the RFS denied and wanted know if anyone had seen such a disclaimer so they could take it up with field management to make them stop. And there’s the story of the RFS firefighter who insists he was sacked because of a conversation rather than formal proceedings. Just because people hear things, just because someone does say something, does not make it correct. Also in this case if there are two health professionals who have contacted COVID-19 without being exposed to COVID-19 at work we cannot know whether the source of their contagion was work and if so whether a mask at work would make any difference to them (though it course it may reduce the risk of spreading it to patients if a person has the virus but is asymptomatic).
I will therefore not address any of the specific issues but look at this in broad terms – ‘can an employer stop a person wearing PPE that they think they need?’ I’ve discussed some issues before – see Choosing your own PPE (June 5, 2019).
One way to think of answers to these questions is to start at an extreme point. Imagine a nurse who is also a retained firefighter decides that the only way to be safe is to wear self-contained breathing apparatus (BA) whilst working as a nurse. Assume they buy their own equipment so they’re not using firebrigade equipment. They turn up to work with air-tank, full mask and insist that is how they are going to work. Presumably that is safe, but is it reasonable?
People are allowed onto premises at the licence, permission, of the occupier (see the discussion in Patient’s demands do not create a duty to treat (April 11, 2020) about a hospital’s right to insist that a patient leave). An employee also enters with the permission of their boss albeit that the terms of the licence or permission are complicated being made up of the employment contract, general employment law and of course the employers and employees obligations under the Work Health and Safety legislation.
As a general rule we can all do what we like unless there is a law that says we can’t. As a citizen, if I want to wear BA as I go about my business that is indeed my business. I commit no offence, and no-one can tell me to take it off except as a condition they may set to enter their premises – so the bank or service station may not let me in. But I do no wrong by wearing my BA if that’s what I want to do.
When I go to work my employer may issue a uniform and set certain dress standards, but they don’t issue everything. I pick my own underwear, socks and no doubt other bits and pieces. My employer may supply pens, but I prefer to take my own. So no-one can seriously say that in employment you can only wear ‘issued kit’ and nothing else; that would be unworkable in nearly every case. If an employer was issuing basic masks and a nurse wanted to buy N95 or P2 masks it would be, in my view, unreasonable to stop them. So what about BA?
There would be reasons a hospital would not want one nurse wearing BA. The hospital does have dress standards (hence the term ‘uniform’) and the nurse in BA is out of place. Importantly wearing BA may impact upon their ability to do their job, it will be harder to communicate with patients and colleagues so that is an actual barrier to performance. The disruption that it may cause to the working of the ward may be higher than the benefit given wearing of BA is not clinically indicated.
The obligation under WHS Law to provide, or perhaps allow, PPE is an obligation to provide reasonably required PPE, not whatever PPE and employee thinks they need even if they make the claim without sound reason.
What about paper masks? In this day and age not as ‘shocking’ as BA. The hospital administrators may say ‘it’s not clinically indicated’ but the problem when dealing with other doctors, is that they may say it is. So are they clinically indicated or is there a difference of professional opinion?
So it comes down to the question of what is the reason for the ban (and hearsay statements is not enough to know, one would want to see the direction, in writing). There may be good reasons. One might be that the hospital has a limited supply and so rations them: “You can’t wear these on the ward because that is low (not no) risk and we need them in the covid ward and operating theatres”. Rationing is a fact of life. That may be an excuse not to issue them but would hardly be good grounds to refuse permission for someone to supply their own. To stop people wearing their own masks one would need to point to a risk to patient care or a risk to the staff member, or at the low end of the scale a risk to the institution.
What are the risks? I’m not a clinician so I’ll look to my trusted source, the ABC:
- Face masks debate: WHO consider evidence for widespread face mask use, as US set to change its advice (3 April 2020)
- Should we be wearing face masks in public during the coronavirus pandemic? Can a cloth mask protect you against COVID-19? (9 April 2020)
The Australian Department of Health’s Information on the use of Surgical Masks (Version 5 (26/03/2020)) gives this advice for health care workers:
During the course of their work, health care workers may be exposed to patients who are suspected or confirmed of having COVID-19. When caring for patients with suspected or confirmed COVID-19, health care workers are required to wear appropriate personal protective equipment (PPE) (masks, gloves, eye shields and/or gowns) to protect themselves from infectious illnesses and help stop the spread of disease. The PPE required will depend on the type of interaction. It is important that our health workforce remains strong and healthy during this time.
Information for health care workers looking after patients in hospitals and non-inpatients is available at www.health.gov.au/covid19-resources.
Concerns about people not knowing how to put masks on and off or not adopting other measures like hand care would, I suggest, be less relevant when talking about health care professionals.
On reading the reports above there is not clear statement that health care workers who are not treating people diagnosed with COVID should, or should not, wear masks.
The next question, in thinking about an answer, is what is anyone going to do about it? An employee has to obey the reasonable directions of an employer. What is an employer going to do to a nurse or doctor who is wearing a face mask? If they sack them would that be considered ‘unfair’? Again that would depend on the employer’s ability to show a good reason for the prohibition and why dismissal was not harsh or unjust. I can imagine a hospital might sack a nurse who insisted on working every shift in BA, but in a paper mask?
I cannot resolve this issue. Like other questions it actually depends on the science and clinical indications, not the law (see also Refusing a paramedic access due to Covid-19 fears (March 28, 2020)). Often you may have an employer who can point to ‘clinical advice’ so the person who is given the direction has little option but to accept that, but where the ‘clinical advice’ is being given to other clinicians the problem of saying where the clinical balance is much harder.
The only answer one can give is that an employer could give a direction not to wear some equipment (whether its PPE or anything else) where wearing that equipment poses a risk to the patient, the staff member or the employer and the demand from the employee is unreasonable. To paraphrase the decision in University College London Hospitals NHS Foundation Trust v MB  EWHC 882 (QB) (discussed in the post Patient’s demands do not create a duty to treat (April 11, 2020)) an employer’s obligation to provide a safe system of work does not mean an employee can ‘…insist on the level of PPE they believe they need’. The employees demands and the employers choices will all be judged against what is reasonable in all the circumstances.
In short an employer has to be able to stop a person wearing something to work, including what they believe is necessary PPE if they have good reason to do so.
The WHS Act puts an obligation on the PCBU and the worker to look after his or her health and safety and when a worker believes the safety of themself requires the use of better level of protection then negotiations between the work and the PCBU should occur to seek a solution.
If agreeance in not achieved then the Industrial Relations Commission can hear the matter and make determination. A PCBU is responsible for providing safety PPE in a workplace and in current conditions we need every front line worker protected against the virus. The hospital is a high risk area and therefore a risk assessment would identify the provision of respiratory protection as the virus takes days to effect a person and therefore not wearing a mask in the circumstances as above would put both workers and patients at greater risk. And we do not want that to happen do we.
The workers can call their regulatory body about the matter and let them make a informed decision.
I agree. Workplace regulators and unions as well as WHS representatives and WHS committees also have a place to help workers and PCBUs reach agreement on WHS issues (noting that a duty to consult is not a duty to agree). The question was however can a PCBU direct workers not to wear an item of PPE and there has to be some line (hence my BA example); I was not attempting to answer can this hospital prevent these staff wearing these masks as we don’t know if that is actually happening and, if it is, why ie what is the reasoning and science behind the decision. Certainly if there is such a direction the staff should be taking advantage of all the consultation processes in the WHS Act to review that decision if they think it is unreasonable.