Law on Facemasks in Retail

| James Sherwin

Retail Facemasks

The Health Act, 1947 has been amended to include a mandatory requirement to wear a face covering in shops pursuant to S.1 296/2020 -Health Act 1947 (Section 31A – Temporary Restrictions (COVID-19) (Face Coverings in Certain Premises and Businesses) Regulations 2020.

There are exemptions to this:

• They to not have to be worn in a shop if you have an illness or impairment that would make wearing or removing a face covering upsetting or uncomfortable.

• Face coverings are also not recommended if anyone has trouble breathing.

• Is unable to remove it without help.

• Has special needs and who may feel upset or very uncomfortable wearing the face covering.

• A person who is unconscious or incapacitated.

• For children under the age of 13 wearing a face covering is not mandatory.

However, President Higgins has signed the Health (Amendment) Bill 2020 which came into operation recently that allows for graduated fines to be introduced as sanctions for breaching Covid-19.

This gives additional enforcement powers to Gardaí to deal with breaches. Under the previous Health Act 1947, a person who commits an offence under this legislation can be fined up to €2,500 and/or receive 6 months imprisonment however this was seen by government as disproportionate and the new Bill allows a system of tiered fines to be introduced of up to €500. In relation to face masks, an on-the spot fine of €50 would apply. Failure to pay the fine could then lead to prosecution.

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Can a retailer refuse entry to a member of the public for not wearing a face mask?

Yes. The retailer is perfectly within their legal rights to refuse entry as they are entitled to refuse entry for any reason. Under Section 4(1) of S.I 296/2020 it states, a person shall not, without reasonable excuse, enter or remain in a premises where goods are sold directly to the public or a premises as defined under the schedule to this legislation (such as shopping centres, theatres, bingo hall) without wearing a face mask.

S.I 296/2020 defines a responsible person under Section 3 as (a) an occupier of the relevant premises (b) the manager of the relevant premises and (c) any other person for the time being in charge of the relevant premises.

Under Section 4 (4) the responsible person shall take reasonable steps to engage with persons entering or in the relevant premises to inform them of the requirements of paragraph 1 of the legislation and to promote compliance with those requirements. It is therefore up to the responsible person to ask members of the public to put on a mask before entering a shop. In other words, a staff member is not a responsible person under the legislation and only the occupier, manager or person in charge of the premises can promote and enforce the wearing of face masks.

Helen McEntee TD has said that the retailer would initially need to try to enforce the rules and as a last resort the Gardai would be called who could then use their enforcement powers and issue a fine. It is therefore the responsibility of the retailer as a responsible person under the legislation to inform the member of the public to wear a face mask and they have the right to refuse entry, this is to ensure the safety of staff and customers in the premises. The government hopes that fines will deter people from breaching these regulations but in cases where the member of the public is not compliant, the retailer has the option of calling the Gardaí.

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Are we allowed to ask if the individual has an underlying condition?

A retailer is entitled to ask if they have a reasonable excuse pursuant to Section 5 of the legislation which entitles them not to wear a face mask such as they cannot wear one as it would cause them severe distress or they have a mental illness or impairment which prevents them from doing so, or they may have difficulties communicating. Under Section 5(1) the responsible person (or worker) may ask the person to remove the face covering, in order to assist the responsible person or worker to provide him or her with healthcare or healthcare advice.

The law is a little unclear here and anyone could give a reasonable excuse that they are exempt from wearing one. There has been calls from the government to provide clarity and follow the UK thinking where they suggest people should carry written evidence of disability.

No Mask Banner

If we refuse admission due to our policy of mandatory wearing of facemasks on our premises, are we leaving ourselves open to a claim under the 9 grounds of discrimination e.g. disability.

No, it is not discrimination, it’s a criminal offence not to wear a face mask. Discrimination would be difficult to prove and you are entitled to refuse entry. The Equal Status Act prohibits discrimination against anyone on the grounds of disability when providing goods or services. This leaves retailers in a legally difficult position. However, it would be very difficult for the member of the public to prove they were discriminated against when the retailer is following government guidelines on the mandatory wearing of masks and that person would be committing an offence if they refuse to wear one. It would be a high bar to overcome to prove discrimination and highly unlikely to succeed. The retailer should however try and ensure the member of the public comes within section 5 of the legislation and has a reasonable excuse for not wearing a mask.

If you require advice or legal assistance on the above issue contact our experienced solicitors James Sherwin – or David O’Riordan – Call: 01 663 2000

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