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In order to be able to generate a standard consensus about the obligation or not to use the mask in companies after the Council of Ministers approved this Tuesday, we are going to clarify some aspects:
  1. INTERIORS. The measure will come into force as of today, Wednesday, and, except for health workers, nursing home workers or public transport workers, the rest of the professionals must not necessarily use the face mask in their office, factory or workplace. However, this element of protection from the virus will not disappear in several cases and there are still many cases in which a mask must be worn during the working day.
  2. It is the responsibility of the company’s management to decide whether or not to withdraw the mandatory use of masks in the workplace. Here the occupational risk prevention services intervene. They must evaluate the work spaces and determine if they are safe enough for an employee to go without a mask or not. Here one of the unknowns -waiting for the BOE- is whether the occupational risk prevention services -in which management and workers co-participate- must carry out a job-by-job or generic evaluation. However, his decision will be the one that the workers must abide by, in one way or another.
  3. From now on, forcing a worker to wear a mask must be very well motivated and justified. Each company must have an occupational risk prevention service that, analyzing the nature of the activity and the particular circumstances of each company, determines whether elements such as the number of workers, whether they are concentrated in a small space or in much, the distance between one and the other, if there is continuous verbal communication between employees, the ventilation mechanisms or if outside personnel enter the company or not, are some of the factors that prevention technicians must evaluate.
  4. The company will not be able to force the mask to be worn if it is not justified. The new royal decree approved by the Government establishes that “in general” the use of a mask in the workplace is no longer mandatory. That is, if there are no justified causes, the employer cannot force any worker to wear a face mask. “If the risk prevention service determines that the mask is not necessary, the employer cannot force the workers to put it on. And if they refuse, they would not be committing disobedience”, if, on the contrary, the prevention service considers that the mask is pertinent and the worker is not, he should challenge the decision before the judge, wear the mask while awaiting sentencing and only if the courts agree with him then he can take it off (without exposing himself to fines).
  5. The company must notify workers if they must wear a mask. The company has the obligation to communicate to its workers the resolution of the risk prevention service in a “reliable” manner. That is, through formal channels, such as a company email, a message through the intranet, a statement on the notice board at the work center or a communication through the works council. It cannot be limited to verbal communication.
  6. The company may sanction workers if they do not wear the mask when the risk prevention service has determined that its use is mandatory. The company cannot impose it if there is technically no justification for it, but if it exists and is accredited, it can. Here the Law on Infractions and Sanctions in the Social Order (LISOS) establishes -in its article 12.16- that the breach of the risk prevention regulations supposes a “serious infraction”. What penalty carries a serious infraction? That depends on what each collective agreement stipulates, be it the sector or the company, but it can range from the suspension of employment and salary to an economic fine. The decision to fire or not a worker if he refuses to use the mask when its use is perceptive is the company’s decision. We consider that the dismissal of the employee would be a disproportionate reaction, although this should be evaluated by a judge once the worker challenges his dismissal, since before that there are other penalties, such as suspension of employment and salary. Different thing is the reiteration or the fraud of the worker by NOT using it.