Face masks and federal discrimination law

State and territory public health orders provide that if you have a medical condition or a disability that requires you to keep your face uncovered, this is a lawful exemption to having to wear a face mask.

Further detail about lawful exemptions can be found on the appropriate state and territory government websites listed above.

Some state and territory equal opportunity and anti-discrimination agencies have also produced detailed guidance about mask-wearing requirements in their jurisdictions and how they relate to state and territory discrimination law. These include:

• The Victorian Equal Opportunity & Human Rights Commission

• Anti-Discrimination NSW

• The Queensland Human Rights Commission

If you are treated unfairly because you are unable to wear a mask due to a medical condition or a disability, the federal Disability Discrimination Act 1992 (Cth) (DDA) may also apply.

The Disability Discrimination Act 1992 (Cth) (DDA) prohibits discrimination against people with a medical condition or a disability in the area of goods, services and facilities.

A strict rule that prevents all people without face masks from accessing shops or services, even people who are lawfully exempt from public health orders and cannot wear masks for medical reasons, is likely to engage the ‘indirect discrimination’ provisions in the DDA.

In broad terms, indirect discrimination occurs when a person is required to comply with a general condition or requirement (such as mandatory mask-wearing), and they are unable to do so because of their medical condition or disability and it has the effect of disadvantaging them.

Indirect discrimination and reasonableness

It is a defence to a claim of indirect discrimination if the condition or requirement is shown to be ‘reasonable’ in the circumstances of the case. The DDA explicitly places the burden of proving ‘reasonableness’ on the person who requires compliance with the requirement or condition — in this case, the shop owner or service provider.

Whether a court considers it ‘reasonable’ for a business or service provider to make mask-wearing a strict condition of entry, or a strict condition for the delivery or provision of goods, services or facilities is likely to be highly fact dependent. It may consider information such as:

• The scope of any state or territory public health order and the exemptions for people with disability or medical conditions that are provided in the law.

• The nature of the goods/services/facilities being delivered. It can be expected that a court would strictly scrutinise the reasonableness of any measure that had the effect of seriously limiting or depriving people with disability of essential services.

• The physical space of the location (e.g., the shop) and the associated risk of transmission. For example, whether it is possible to stay 1.5 metres away from each other inside the building.

• How long people generally stay inside the building when receiving the goods or services.

• Whether the business or service provider has close contact with people who are most vulnerable to severe COVID–19 health impacts (e.g., aged care, disability care, health care, people over 60 or people with respiratory conditions).

• Advice from medical and work health and safety bodies such as the Australian Health Protection Principal Committee and Safe Work Australia about COVID-19 risks, including duties owed by employers to staff and customers under work health and safety laws.

• Whether the business or service provider provides any opportunity for people who cannot wear a mask to access its goods/services/facilities.

• The incidence, severity and distribution of COVID-19 in the areas where the business or service provider operates.

• Whether there are any alternative control methods such as testing regimes, physical distancing or personal protective equipment that might reasonably achieve the business/service provider’s objective without recourse to the strict mask-wearing condition.

The duty to provide ‘reasonable adjustments’

The DDA also requires businesses involved in the provision of goods and services to make ‘reasonable adjustments’ for people with disability. ‘Reasonable adjustments’ are all adjustments that do not impose an unjustifiable hardship on the business making the adjustments.

Unjustifiable hardship is a high test, and it recognises that some hardship on businesses and employers may be needed and justifiable to reduce discrimination against people with disability.

Depending on the circumstances of the case, a ‘reasonable adjustment’ may include allowing customers with disabilities to be in a shop without a face mask, if they have a lawful reason for not wearing a face mask.

In certain cases, it may not be possible to allow unmasked people with a medical condition or disability to enter a premise alongside other people. In those cases, a ‘reasonable adjustment’, may include providing the goods or services in a different manner, for example:

• setting specific trading hours during which people can attend the store without a mask

• making provisions for the delivery of goods

• travelling to a customer to provide particularly essential service.

Exemptions under the DDA

In responding to a claim of disability discrimination, a provider of goods or services may seek to rely upon exemptions in the DDA to argue that any discrimination resulting from a strict mask-wearing condition was lawful. This may include the ‘infectious diseases’ exemption in s 48 of the DDA.

This provides that it is not unlawful to discriminate against a person if their disability is an infectious disease — or arguably the potential to acquire an infectious disease — and such discrimination is ‘reasonably necessary’ to protect public health.

In considering the term ‘reasonably necessary’, it is not likely to be sufficient that a discriminatory condition or policy is merely helpful, desirable or convenient in protecting public health.

Please check the appropriate state and territory government websites listed above for the latest information about mask-wearing and what is required to prove you have a lawful reason for not wearing a face mask.

It is not unlawful under the DDA for a person, such as an employer or a service provider, to request or require another person to provide information about a medical condition if the person making the request can demonstrate that it is not in connection with, or for the purpose of, unlawfully discriminating against the other person on the ground of disability.

However, the collection of personal information is also regulated by privacy laws. Any requirement for individuals to provide evidence of a medical reason for refusing to wear a mask must be made in compliance with those laws. 

Information about Australia’s federal privacy laws can be found on the website of the Office of the Australian Information Commissioner (OAIC).

The OAIC also provides links to relevant state and territory privacy laws and bodies.

Please check the appropriate state and territory government websites listed above for the latest information about whether face masks are required to be worn in your workplace.

The Fair Work Ombudsman and Safe Work Australia have also provided specific guidance about workplace rights and obligations in the context of the COVID-19 pandemic under employment law and work health and safety law.

The Disability Discrimination Act 1992 (Cth) (DDA) prohibits discrimination against people with a medical condition or a disability in the area of employment.

A strict rule that requires all workers to wear masks at work, including people who are lawfully exempt and cannot wear masks for medical reasons, is likely to engage the ‘indirect discrimination’ provisions in the DDA. In broad terms, indirect discrimination occurs when a person is required to comply with a general condition or requirement (such as mandatory mask-wearing), and they are unable to do so because of their medical condition or disability and it has the effect of disadvantaging them.

When can indirect discrimination occur?

Under the DDA, indirect discrimination may occur if an employer requires, or proposes to require, that a person comply with a general requirement or condition.

This means that an employer does not need to seek to enforce a mandatory mask-wearing condition (e.g., by way of termination, suspension, disciplinary action, or performance management) to engage in unlawful discrimination.

Indirect discrimination and reasonableness

It is a defence to a claim of indirect discrimination if the condition or requirement is shown to be ‘reasonable’ in the circumstances of the case. The DDA explicitly places the burden of proving ‘reasonableness’ on the person who requires compliance with the requirement or condition — in this case, the employer.

Whether a court considers it ‘reasonable’ for an employer to make mask-wearing a strict condition of employment and work is likely to be highly fact dependent. It may consider information such as:

• The scope of any state or territory public health order and the exemptions for people with disability or medical conditions that are provided in the law.

• The nature of the work performed by the employee, whether it is outside or in a confined space, and associated risk of transmission.

• Whether the work involves interacting closely with other staff or with large numbers of people.

• Issues relating to the employee’s disability and medical condition.

• Advice from medical and work health and safety bodies such as the Australian Health Protection Principal Committee and Safe Work Australia about COVID-19 risks, including duties owed by employers to staff and other people under work health and safety laws.

• Whether the relevant workplace has close contact with people who are most vulnerable to severe COVID–19 health impacts (e.g., aged care, disability care, health care, people over 60 or people with respiratory conditions).

• The incidence, severity and distribution of COVID-19 in the areas where the business or service provider operates.

• Whether there are any alternative control methods, such as testing regimes, physical distancing or personal protective equipment, that might reasonably achieve the employer’s objective without recourse to a strict mask-wearing condition.

The duty to provide ‘reasonable adjustments’

The DDA also requires employers to make ‘reasonable adjustments’ for people with disability. Depending on the circumstances of the case, a ‘reasonable adjustment’ may include exempting workers with disabilities, who have a lawful reason for not wearing a face mask, from a general rule that requires mask-wearing at work.

Employers are not required to make adjustments for people with disability if the adjustments would impose an unjustifiable hardship on them. Unjustifiable hardship is a high test, and it recognises that some hardship on businesses and employers may be needed and justifiable to reduce discrimination against people with disability.

What about ‘the inherent requirements’ of a role and other exemptions in the DDA?

In responding to a complaint of disability discrimination, an employer may seek to rely upon the defence of ‘the inherent requirements’ of the role. Under the DDA, it is lawful for an employer to discriminate against a person on the ground of the person’s disability if the person is unable to carry out the ‘inherent requirements’ of a particular job or would, in order to do so, require services or facilities that would impose an ‘unjustifiable hardship’ on the employer.

Depending on the circumstances of the case, it might be an ‘inherent requirement’ of a role that a person be able to wear a mask at work.

An employer may also seek to rely upon the ‘infectious diseases’ exemption in s 48 of the DDA. This provides that it is not unlawful to discriminate against a person if their disability is an infectious disease — or arguably the potential to acquire an infectious disease — and such discrimination is ‘reasonably necessary’ to protect public health.

In considering the term ‘reasonably necessary’, it is not likely to be sufficient that a discriminatory condition or policy is merely helpful, desirable or convenient in protecting public health.