The role of the security officer in enforcing COVID-19 laws
Legislation requiring the mandatory wearing wearing of mask came into force in Ireland on the 10th August 2020. The Health Act 1947 (SECTION 31A – Temporary Restrictions) (COVID-19) (Face Coverings in certain premises and businesses) Regulations 2020 is the relevant piece of legislation and since then we have got a large number of queries from security operatives about their role in the process. I’ve been replying to each individually so I thought the best course of action was to put out an article outlining the legislation and security operatives role while working in the impacted businesses.
The legislation sets out a list of affected businesses where face masks are required. These include:
- Shops, including pharmacies
- Shopping centres
- Cinemas and cinema complexes
- Concert halls
- Bingo halls
- Nail salons
- Hair salons and barbers
- Tattoo and piercing parlours
- Travel agents and tour operators
- Laundries and dry cleaners
What the law says
The temporary regulation which amend the Health Act 1947 are, like most COVID-19 related laws, a matter between the Gardaí and the offender and are not enforceable by other citizens. So if a Garda witnesses a person breaching legislation they can arrest them and prosecute them. There is no on the spot fine option. The Garda can request a person to wear a mask and if they refuse they can be arrested and prosecuted. They could face a €2,500 fine and/or a jail sentence if they are brought to court.
The exact piece of the legislation relating to face masks says ” A person shall not, without reasonable excuse, enter or remain in a relevant premises in a relevant geographical location without wearing a face covering.” This is contained in Section 4 Paragraph 1
The role of the store
The legislation sets out the role of the store clearly . It says ” A responsible person shall take reasonable steps to engage with persons entering or in the relevant premises to inform them of the requirements of paragraph (1) and to promote compliance with those requirements.”
So the store has to have a responsible person to engage with and advise customers of the requirement. It doesn’t say they can enforce the legislation. Just advise. They could also call the Gardaí and report the crime, if a customer enters without a mask if they chose to do so. It is important to note that this responsible person in the law is not a security officer. The law says that the responsible person is one of three people:
- the occupier of the relevant premises
- the manager of the relevant premises
- any other person for the time being in charge of the relevant premises
While the law says that there is a legal obligation on the store to do this there is no penal provision for it in the law. So even if a store isn’t doing it there is no penalty for the store. only for the customer who isn’t complying.
The role of security
So far we haven’t discussed the role of security. That’s because under the legislation security don’t have a role. However this depends on how much the store cares about the safety of its staff and customers. Any store could , if they chose to, decide to make it a condition of entry that a customer wears a mask to enter the store. They could then task security to enforce this condition. This is the same with any of the health guidelines and/or regulations. This would allow the security officer to refuse entry to any person not wearing a mask and ask any person inside without a mask (or a reasonable excuse) to leave. If this was the case we would advise that the store have signage at the entry clearly stating the policy and security staff positioned at the door to enforce the condition. Any security company asked to enforce a condition such as this by a client would be advised to get their responsibility clearly set out in writing and some form of indemnity signed to protect themselves.
Under the legislation there a range of reasonable excuses and exemptions from wearing a mask. Firstly the exemptions.
- The Gardaí are exempt in the course of thier duty.
- Workers (where they have a screen or can maintain a 2m distance when performing their duties.
- A person under 13 years old
There are also a range of reasonable excuses for not wearing the mask in stores. These include:
- the person cannot put on, wear or remove a face covering because of any physical or mental disability ,illness, impairment or without severe distress,
- the person needs to communicate with a person who has difficulties communicating (in relation to speech, language or otherwise),
- the person removes the face covering to provide emergency assistance or to provide care or assistance to a vulnerable person
- the person removes the face covering to avoid harm or injury, or the risk of harm or injury,
- the person removes the face covering in order to, and only for the time required to, take medication,
- the person removes the face covering at the request of a responsible person, or of a worker, in order to enable him or her to ascertain the person’s age by reference to photographic identification for the purposes of the sale of goods or services in respect of which there is a minimum age requirement or where the responsible person, or worker, has lawful authority to verify the person’s identity, or
- the person removes the face covering at the request of a responsible person, or of a worker, in order to assist the responsible person or worker to provide him or her with medical attention or healthcare advice.
Most of those are pretty self explanatory but there is one which has a risk associated with it for security and store teams.
The major issue will be around the reasonable excuse on physical or mental illness or diabolical grounds. While there will be many genuine cases there will also be those who don’t want to wear a mask and use the (quite immoral) excise of a made up disability. When dealing with the guards it’s a lawful defence so they will have to prove it as a defence in court. Not so when dealing with the store or with security. If you refuse somebody access or service because they aren’t wearing a mask and they claim it is because of their disability then they are essentially being refused because of their disability. That’s an issue under the Equal Status Act and the store or security provider may find itself paying out in compensation. The person is under no obligation to provide proof of a disability so it comes down to what the store a manager or security person honestly believes. However if they are wrong then there will be a civil case.
Rights and obligations
We have also seen a rise in those who have a new found interest and expertise around the constitution and their ‘rights’. As I heard a person claim last week to a security person “I have a constitutional right not to wear a mask”. Now I’ve read the Constitution many times and have studied a lot of law and I’ve never come across that right anywhere. Yes you have personal rights but so does the store. My advice when the guardians of the constitution come calling is to explain shortly any clearly about common law property right. Yes you have the right to express you opinion and freedom of movement BUT ‘Management reserve the right to refuse admission’ . Its that simple.
From my viewpoint most people are applying common sense and there is a high degree of compliance with the regulations. There will always be those few in society who wont obey the rules no matter what those rules are and those who simply dont agree with this rule. Some stores will simply advise customers and some wont even go that far. In some stores however security will be in the firing line That is fine because it shows that the store cares about safety enough to protect its staff by using security. In these cases knowledge is power. Knowing the rules is half the battle. Know your laws. Don’t just take my word for it look it up. Try somewhere that isnt Facebook to do your research though