Is it Mandatory for Employees to Wear a Surgical Mask at the Workplace?

April 20th 2020

Yesterday the Israeli government published Regulations on returning to the workplace (see here). Following the publication questions arose as to whether it is legally required for employees to wear masks at the workplace.

According to the Second Schedule of the Regulations (Regulation 2B), employers must comply with the provisions of section 3E(c) and (c1) of the Public Health Order (the Novel Coronavirus) (Home Isolation and Various Provisions) (Temporary Provisions), 2020:

3E(a) No person shall remain in the place as specified below without wearing a mask… (1) “A building that is not a person's place of presence or another place of permanent presence (hereinafter – a place of residence)”.

Section 3E(b)(3) exempts from the obligation to wear masks any person “being present at a confined or separated place, without another person", and defines this term to include a person alone in a room in a room, and "in part of a structure that includes at least a height of no less than 2 meters partition that separates the person from other persons who are in the same building, or in an open space if the height of the partition that separates the person from other persons is at least 1.8 meters."

Section 3E(b)(5) exempts from the obligation to wear a mask "two employees working regularly in one room at a workplace provided that they are at least 2 meters apart."

Stemming from the above are the following conclusions:

An employee does not have to wear a mask when sitting alone in a room, when sitting in a room with another employee provided they are at least 2 meters apart, if there exists a partition of at least 2 meters in height, and when employees are sitting in an open space divided by partitions of at least 1.8 meters in height. It is mandatory to wear a mask while walking around the workplace, outside the personal room.

Notably, the regulations published yesterday allow up to five employees to sit in a room larger than 20m² without partitions; however, there is no corresponding exemption in the previous regulations. Consequently, although it is now allowed to have up to five employees sitting in one room provided it is larger than 20m², there is no corresponding exemption for them from the obligations to wear masks. This is an error that the legislator has to fix.

Under section 3E(c), the employer is responsible for ensuring that employees comply with the duty to wear masks in the workplace. According to the new regulations, the CEO, and the appointed Corona Regulations Supervisor who is responsible for compliance with the provisions of the regulations, must sign personal statements to confirm compliance with the new regulations and awareness to all applicable legal requirements (see here). It is significant because violations of these regulations constitute is a criminal offense.

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