It already feels like a while ago that the COVID-19 virus dominated our lives. Mandatory face masks and quarantine – thankfully, we have been living without these measures for some time now. At the moment, though, the virus does seem to be picking up again.
With the virus potentially flaring up again, and the accompanying measures, workplace discussions about it are returning too. Can an employee at a care facility refuse to wear a face mask because it causes them discomfort? The subdistrict court of the District Court Limburg recently ruled on exactly this.
Facts
The employee worked as a care assistant at a care centre for vulnerable elderly people with dementia. The employer applies RIVM (national health institute) guidelines as the minimum standard for its face-mask policy. Employees are actively informed of the mandatory face-mask policy in effect at the employer’s care centres.
In a conversation with the employer, the employee said that wearing face masks caused him difficulty. He not only regarded the masks as “security theatre”, but also experienced physical and mental discomfort from them, stating that wearing a mask gave him nosebleeds. After he continued to systematically refuse to wear the medical face mask, he received a serious formal warning.
The employee reported sick and continued to maintain that he could not wear a medical face mask due to medical discomfort. After a visit to the company doctor, the doctor found no reason to advise against the employee wearing a face mask. The employer gave him one last chance: either resume work wearing a mask, or face a stop in pay. In a letter, the employee stated he would not resume his duties, after which the employer suspended his pay.
The subdistrict court’s ruling
The subdistrict court first established that the instruction to wear a medical face mask qualified as a reasonable instruction. It did not accept the employee’s position that the face-mask requirement was unreasonable in his case because of his nosebleeds, since it had not been established that wearing a face mask was impossible for him. Despite the possible nosebleeds, this did not mean he was unable to carry out his duties while wearing a mask.
The subdistrict court held that the employer’s interest in protecting clients and staff outweighed the discomfort claimed by the employee. His continued refusal to wear a face mask was found by the subdistrict court to constitute seriously culpable conduct or omission. In reaching this conclusion, the subdistrict court weighed the fact that he had maintained this refusal despite a serious warning, a stop in pay, and contrary advice from the company doctor and the UWV.
The employment contract was dissolved on the ground of serious culpability, with no right to a transition payment for the employee.
For the full ruling, click here (in Dutch).
Questions about the above?
Please contact one of Sørensen Advocaten’s employment lawyers. Call: +31 (0)10-2492444
