Since the spread of the coronavirus pandemic and the rise in case numbers, workplaces have been paying much closer attention to measures against the outbreak. A common belief is that employees who refuse to wear masks can have their employment contracts terminated and may be dismissed without severance for just cause.
The Importance of Health and Safety at Work
From the perspective of occupational health and safety, both employers and employees must strictly comply with required measures during a pandemic. Workers following health and safety rules at the workplace protects employee well-being and helps maintain continuous production. Article 417 of the Code of Obligations states that “the employer is obliged to take every precaution and to select tools and equipment appropriate to ensure complete occupational health and safety at the workplace,” and also provides that “workers must comply with the health and safety measures taken.”
Likewise, under Law No. 6331 on Occupational Health and Safety, “the employer is responsible for ensuring the health and safety of employees in relation to the work and must take all measures, including providing training and information to prevent occupational risks, supply necessary tools and equipment, and monitor improvements to health and safety measures in line with changing conditions.”
Situation of an Employee Who Does Not Wear a Mask
Under Law No. 6331, employees working with employers are also responsible for protecting occupational health. Accordingly, within the scope of the training they receive and employer instructions, employees must make every effort to protect their own health and the health of those around them. These regulations set out mutual responsibilities for employers and employees; both parties are accountable for safeguarding workplace health and taking the necessary measures.
These obligations are further detailed in Labor Law No. 4857. Article 25 of this law states that “if the safety of work is endangered due to the worker’s own willful or negligent behavior,” the employer may terminate the employment contract for just cause. However, for such a decision to be lawful, the employer must act objectively and in good faith.
What Employers Must Do
Although an employer may terminate the contract of an employee who refuses to wear a mask for just cause and without severance pay, the employer must first take all necessary measures and inform the employee. Workplace rules that employees must follow should be clearly posted, and the disciplinary steps that may follow must be communicated. Many workers do not assume they will be dismissed for not wearing a mask, and terminating a contract without prior warning would not align with good faith principles.
Therefore, employers must provide necessary information both verbally and in writing within the work environment. Health and safety training should explicitly include pandemic-related precautions, since preventing infection is a current priority and should be emphasized in training. Employees who fail to wear masks should first receive a warning; if they persist and consciously refuse to comply, termination of the employment contract may be applied as a last resort. Although there are general restrictions on dismissals in certain circumstances, employers may still terminate employment for just cause. Employees who endanger their own safety and the safety of the workplace by not wearing a mask can be subject to lawful dismissal for just cause.