No pay for employee who refuses to wear mouthpiece

An employer may deny an employee access to work if the employee refuses to wear a mouth guard. The employer may also suspend wages until that time. This was recently ruled by the Central Netherlands District Court in summary proceedings.

What was going on?

This case involved an employee working as a delivery driver for a pastry shop. The employee passes goods between branches, delivers to customers and picks up items from suppliers. On Oct. 13, 2020, the confectioner made it mandatory for all employees to wear a mouth guard.

The employee then refused to comply, after which he was denied access to work and his pay was suspended. The employee disagreed and went to court. The employee believes that wearing a face mask infringes on his privacy, causes health risks and causes a lot of inconvenience during his work. In addition, he says he can keep a sufficient distance from colleagues, making the wearing of an oral mask unnecessary in his job.

The employer's right of instruction

The confectioner invoked what is known as the employer's statutory right of instruction, which follows that employees must comply with an employer's (reasonable) regulations. Although there is debate about the effectiveness of the mouthpiece, the court calls the mouthpiece a socially acceptable remedy. For the time being, the court assumes that wearing a mouth mask during the corona pandemic can contribute to health and safety and rules that the pastry chef may indeed impose this obligation on its employees. According to the court, the confectioner need not distinguish between different jobs. Indeed, a mouth guard measure can only be effective if everyone adheres to it. In addition, the employee in the delivery van does not have to wear a mouth mask. Therefore, for him, the obligation to wear a mouth mask is limited to the time he is on the premises, which amounts to 10% of his total working time.

In its ruling, the court cited two main purposes that justify the mouthpiece requirement. Namely, as an employer, the confectioner must protect the individual interests of employees by ensuring a healthy and safe work environment. In addition, the employer has a business interest because employees must continue to be paid in the event of illness or quarantine.

In conclusion

In this case, the interim relief judge rejected the employee's claims and found in favor of the employer. It is also important to note that the outcome in this case might have been different if the employee had been able to make it plausible that due to health reasons, such as asthma - where wearing a mask can entail health risks - he was unwilling or unable to wear a mask. In this case, as far as is known, this was not the case.

Another question is to what extent this statement can be "stretched" with respect to other Corona measures, such as mandatory testing.

Do you have questions about corona measures within your company? Please feel free to contact us. Curious about the full ruling? Then click here.