Companies in Spain which decide that masks should continue to be worn in the workplace can insist that their employees wear them, several experts in Law have decided, after studying the BOE decree which came into force on Wednesday. They believe the new rule gives labour rights precedence over individual freedom, so employees cannot refuse to wear a mask at work.
"If the department in charge of health and safety risks in the workplace decides, for objective and proportionate reasons, that a mask rule should be enforced, then a worker must comply because it is part of their obligations as an employee,” explained Eduardo Valpuesta, a professor of Commercial Law at the University of Navarra.
Javier Tajadura, a professor in Constitutional Law at the University of the Basque Country, said it is just like bricklayers being obliged to wear a hard hat on a building site. “It is an occupational health issue and the companies have a good argument for insisting on it because if they don’t and something happens, they could be held responsible,” he explained.
Baldomero Oliver, a professor in Constitutional Law at Granada university, agreed. “There is no such thing as a fundamental right which is absolute. With masks, there may be a conflict between the right not to wear one and the right to public health, but if a company makes a decision based on the criteria established in the decree, it can oblige its staff to wear one and it can even claim that it is the company that has the freedom to decide,” he said.
A worker who refuses to wear a mask could even face the sack, added Valpuesta. “Article 54.1 of the Statute of Workers stipulates that for disciplinary dismissal there has to be a ‘serious and culpable breach’ by the workers, and ‘lack of discipline or disobedience’ in the workplace is considered a breach of contract (art. 54.2.b). It would have to be a serious breach, not just failing to wear a mask at a certain moment or without thinking, etc. Each case would have to be studied individually,” he said.
“The worker could be dismissed for failing to comply with company regulations,” confirmed Tajadura.
On the other hand, the owner of a bar or shop would not be able to insist that a client wears a mask, “and if they do, the client can fill in an official complaint form or report them to the consumers office,” said Valpuesta.
“Businesses such as these cannot even reserve the right of admission in this case, because this particular law does not give them an arbitrary right to decide who is on their premises or not,” Oliver pointed out.
“Before, the general rule was that everyone had to wear a mask. Now, the rule is that if somebody doesn’t want to, they don’t have to,” Tajadura concluded.