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FAQs: Face masks and human rights – Jul 2020

From midnight on Wednesday 22 July 2020, people in metropolitan Melbourne and Mitchell Shire must wear a face mask or covering when out in public for one of the four reasons permitted under Stage 3 restrictions. If you are not wearing a face mask or covering from this time, you may be issued a $200 fine by Victoria Police for noncompliance. This resource includes frequently asked questions about human rights and the requirement to wear a face mask during COVID-19.

You can also download this information as a PDF from the link at the bottom of this page.

If I have a medical condition, do I have to wear a face mask?

If you have a medical condition that requires you to keep your face uncovered, this will be a lawful exception to the mandatory requirement to wear a face mask or covering.

While the Department of Health and Human Services has not defined what a ‘relevant medical condition’ is, its website includes examples such as a medical condition that affects one’s breathing, a serious skin condition on the face, mental illnesses and some disabilities.

If you are communicating with a person who is deaf or hard of hearing, you are also be permitted to remove the face mask or covering; however, you must carry it with you at all times.

To find out more please visit the Department of Health and Human Services.

Exceptions

There are some exceptions to the mandatory requirement to wear a face mask or covering in public. One exception includes circumstances where a person has a ‘relevant medical condition’ which impacts their ability to wear a mask. This could include:

  • a medical condition that makes it difficult to breathe
  • a serious skin condition,
  • a disability or a mental health condition.

Other lawful exceptions include:

  • communicating with a person with a hearing impairment, where they need to be able to see your mouth for communication
  • strenuous exercise such as jogging, running or cycling
  • some professions.

Can Victoria Police fine me for not wearing a face mask or covering even if I have a medical reason not to?

The Charter of Human Rights and Responsibilities protects Victorians’ fundamental human rights, such as the right to equality, and to live freely without discrimination. When considering whether to issue a fine, Victoria Police must consider your human rights under the Charter and act compatibly with them.

If Victoria Police issues you with a fine for not wearing a face mask or covering, but you have an exemption (for example, a relevant medical reason), you can request a review of the fine from Victoria Police. You can also challenge the fine at the Magistrates’ Court. It is important that you get legal advice on these options before the fine is due. You may also be able to make a complaint to IBAC in relation to police misconduct.

Issuing a fine to someone who is lawfully excused from wearing a face mask or covering would not be considered discrimination under the Equal Opportunity Act, because it is not captured by an area of life protected under that law.

Can a shop owner or service refuse to serve me if I am not wearing a face mask or covering, but I have a medical reason not to?

The Equal Opportunity Act prohibits discrimination against people with a disability in the area of goods and services.

If you were refused service and you wanted to make a discrimination complaint against the shop owner, you would need to show that there was a clear link between your disability and your inability to wear a face mask or covering. For example, if you have an anxiety disorder, you would only be protected in this scenario if the inability to wear a face covering is a symptom or characteristic of your anxiety disorder.

The Act also requires providers of goods and services to make reasonable adjustments for people with a disability. This may include, for example, not requiring customers with a disability to wear a face mask or covering in a shop if they have a lawful reason not to because of their disability.

Providers of goods and services are not required to make adjustments for people with a disability if the provider can prove the adjustments are not reasonable. What is ‘reasonable’ is based on individual facts and circumstances of each case. The scope of the Chief Health Officer’s directions is likely to be relevant to whether something is considered to be reasonable or not.

If you have a disability or medical condition which prevents you from wearing a mask or covering, then this may amount to unlawful discrimination

If you have a disability that affects your ability to wear a face mask or covering and you have alerted a shop owner to your lawful exception, but they refuse entry or service because you are not wearing a face mask or covering, this may amount to unlawful discrimination under the Equal Opportunity Act.

If you find yourself in this situation, contact us on 1300 292 153 for more information about your rights and how you can make a complaint.

If you don’t have a relevant medical condition, this is unlikely to be unlawful discrimination

If you do not have a disability that affects your ability to wear a face mask or covering and are refused entry or service by a shop owner, you are unlikely to meet the requirements of the lawful exception to public health orders – and the refusal of entry or service is unlikely to be discrimination.

In both of these scenarios the shop owner may rely on exceptions under the Act to argue the discrimination was lawful, in particular the health and safety exception which allows discrimination against people with a disability if it is reasonably necessary to protect the health and safety of any person, or the public generally. The responsibility would fall on the shop owner to prove that these exceptions apply.

I have a hearing impairment, and I cannot lip-read when people are wearing face masks or coverings; does a service provider need to make adjustments to communicate with me?

Under the Equal Opportunity Act, a provider of goods and services must make reasonable adjustments for people with a disability, unless the adjustment they are seeking is not reasonable.

If you are communicating with a person who with a hearing impairment, the directions allow you to remove your face mask or covering in order to communicate with that person. If you do remove your face mask or covering in this situation, you must maintain physical distancing of 1.5 metres and cover your mouth with a tissue or elbow if you need to cough or sneeze.

If a person with a hearing impairment asks a shop owner to make adjustments (such as removing their face mask or covering so that person can lip read, or using a voice-to-text app on their phone) or communicate from a safe
distance, and the shop owner refuses to make these adjustments, this may amount to unlawful discrimination under the Equal Opportunity Act.

If you find yourself in this situation, contact us on 1300 292 153 for more information about your rights and how you can make a complaint.

Depending on the adjustment you are seeking, the shop owner may rely on exceptions under the Act to argue the discrimination was lawful – in particular, the health and safety exception which allows discrimination against persons with a disability if it is reasonably necessary to protect health and safety. The responsibility would fall on the shop owner to prove that these exceptions apply.

Do I need to wear a face mask or covering in the workplace? Can my employer require me to wear a face mask or covering, even if I have a medical reason not to?

Employees will now be required to wear a face mask or covering when at work, even when sitting at their desk. However, employees are permitted to take a break from wearing their face masks or coverings during the working day. The Department of Health and Human Services website sets out guidelines for how to remove, and reapply a face mask or covering safely.

Employers can lawfully require their employees to wear a face mask or covering when they are at work. However, there are exceptions to this requirement, such as a relevant medical condition, or if wearing a face mask or covering would create a risk to the employee’s health and safety, determined through occupational health and safety guidelines. If your work requires you to enunciate clearly or have your mouth visible, you may also be exempt from this requirement.

Under the Equal Opportunity Act, employers are prohibited from discriminating against an employee or prospective employee with a disability. Employers are also required to make reasonable adjustments for employees with a
disability (such as allowing an employee with a relevant medical condition to work without a face mask or covering). An employee in these circumstances may request their employer make adjustments for them. However, an
employer is not required to make adjustments for an employee with a disability if the adjustments the employee is seeking are not reasonable. It is the responsibility of the employer to prove that the adjustments sought are not reasonable.

If you have a disability or medical condition that prevents you from wearing a face mask or covering and your employer treats you unfavourably because you aren’t wearing one, this may amount to unlawful discrimination

If you have disability or medical condition that affects your ability to wear a face mask or covering, and you have alerted your employer to this lawful exception to public health orders, but you face disciplinary action for not wearing a face mask or covering, this may amount to unlawful discrimination under the Act.

If you find yourself in this situation, contact us on 1300 292 153 for more information about your rights and how you can make a complaint.

If you don’t have a relevant medical condition, then an employer treating you unfavourably because you aren’t wearing a mask is unlikely to be unlawful discrimination

If an employee or prospective employee with a disability affecting their ability to wear a face covering, who has alerted their employer to their lawful exception to the public health orders, faces disciplinary action for failing to wear a face mask this may amount to unlawful discrimination under the Act.

Exceptions

In both of these scenarios the employer may rely on exceptions under the Act to argue the discrimination was lawful, in particular the health and safety exception which allows discrimination against persons with a disability if it is reasonably necessary to protect the health and safety of any person, or the public generally. The responsibility would fall on the employer to prove that these exceptions apply.

I’m a student with a disability; can my school or a teacher make me wear a face mask or covering when I’m at school?

Children aged 12 and over will now be required to wear face masks or coverings in public. Children under the age of 12 are not required to wear a face mask or covering. Please note that children under two years of age should never wear a face mask or covering as it can result in choking and strangulation risks.

Children aged 12 and over who attend primary school will not be required to wear a face mask or covering while at school. However, children aged 12 and over who attend high school will be required to wear a face mask or covering while at school. This includes students attending specialist schools.

Under the Equal Opportunity Act, educational authorities must not discriminate against a student with a disability. Education authorities must also make reasonable adjustments for students with a disability (such as allowing a student who, for medical reasons, is not able to wear a face mask or covering to be exempt from this requirement).

A student in these circumstances may request that the educational authority make reasonable adjustments for them. However, the educational authority will not be required to make these adjustments if the adjustments are not reasonable. The educational authority will need to show that the adjustments sought are not reasonable. Educational authorities are also able to set reasonable standards of dress and behaviour. A standard will be reasonable if the educational authority took into account the views of the school community in setting the standard. Therefore, a school may argue that making an adjustment for a student is not reasonable because it impacts upon the standard of dress or behaviour required of all students.

If you are a student with a disability that prevents you from wearing a face mask or covering and your school treats you badly, this may amount to unlawful discrimination.

If you find yourself in this situation, contact us on 1300 292 153 for more information about your rights and how you can make a complaint.

If a student (excluding primary school students) aged 12 or over does not have a disability affecting their ability to wear a face mask or covering, they are unlikely to meet the requirements of the lawful exception, and any direction by their school or a teacher to wear a face mask or covering is unlikely to amount to discrimination.

In these circumstances, an educational authority may rely on exceptions under the Act to argue the discrimination was lawful, in particular the health and safety exception which allows discrimination against people with a disability if it is reasonably necessary to protect the health and safety of any person, or the public generally. The responsibility would fall on the educational authority to prove that these exceptions apply.

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Address
Level 3, 204 Lygon Street Carlton Victoria 3053

General enquiries
enquiries@veohrc.vic.gov.au

Reception
1300 891 848

Enquiry line
1300 292 153 or (03) 9032 3583

Interpreters
1300 152 494

NRS Voice Relay
1300 555 727 then use 1300 292 153

Media enquiries
0447 526 642

The Victorian Equal Opportunity and Human Rights Commission acknowledges Aboriginal and Torres Strait Islander peoples as First Australians and recognises their culture, history, diversity and deep connection to the land.

We acknowledge that the Commission is on the land of the Kulin Nation and pay our respects to Elders past and present.