Letter to employers who suspended employee for being mask-exempt

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Written by: Miri
August 2, 2021
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Dear [name],

RE: [Name] Disciplinary Hearing

I am writing to you ahead of our Zoom meeting, scheduled for [date]. Please ensure all attendees have read this letter and bring a copy of it to the meeting with them, as I will be referencing it throughout the meeting.

As you are aware, I am currently on a suspension from work since, you allege, I have brought the company into disrepute by not wearing a mask. This, you say, may be a matter of gross misconduct.

In opening, I would like to alert you to the fact that, since our last meeting on [date], I have taken the time to seek legal advice from professionals who specialise in the coronavirus restrictions, especially the misinterpretation and misapplication of these restrictions by employers. I have been advised in detail and at length on the legal obligations of my employer in regards to these restrictions.

In the first instance, I would like to make it clear as a matter of formal written record that I am exempt from wearing a mask. The nature of my exemption is a private medial issue that I am under no legal obligation to share with my employer, as per the Government’s own guidance (1).

Not only does the Government state unequivocally that the mask-exempt are required only to self-certify by stating that they are exempt, but robust and well-established legislation, including the Equality Act 2010 and the Disabilities Discrimination Act, outline it is in fact an offence to probe into the nature of an individual’s mask exemption, as this may be related to a hidden disability, and asking an individual for information about a hidden disability is illegal. This offence may be punished with an individual fine of up to £5,000 and punitive damages of between £900 and £9,000, as per sections 112 (Aiding Contraventions) and section 119 (Remedies) of the Equality Act.

Although there are some very limited circumstances in which I am prepared to wear a mask, this is at my own discretion. Clearly, the recent events that have led to my suspension make it clear why I may choose to succumb to external coercion and intimidation and reluctantly wear a mask in a very limited set of circumstances, even though medically and legally, I am exempt from doing so. If I choose to exercise my own discretion, and wear a mask occasionally and for brief periods, this is my right; it does not invalidate my exemption, nor does it excuse my employers from flouting the law.

I have been asked by my employers to provide medical certification of my mask exemption. Not only is this entirely unnecessary as per the Government’s guidance (1), it is also not possible, as doctors have formally stated that they are not in a position to provide this (2).

It is a matter of critical importance that employers – including and especially employers in the [area of work] field – understand their obligations as pertain to inclusion and equality, and do not fall foul of the law by engaging in illegal disabilities discrimination, or other forms of exclusionary or discriminatory behaviour, as relate to mask exemptions. Many of our service users will qualify as medically and legally exempt from wearing a mask, for reasons ranging from respiratory illness to post-traumatic stress disorder (PTSD). It is important to note that some of those afflicted with PTSD, especially PTSD resulting from rape trauma, experienced having their face covered as part of their abuse, and so are unable to wear face coverings now, as to do so could trigger debilitating panic attacks that may require emergency medical attention.

Because reasons for being unable to wear a mask can be so personal and so traumatic, the law rightly protects the mask exempt from ever having to disclose a reason for their exemption to anyone – and this includes employers.

Taking the above into account makes it abundantly clear that it is not me who has “brought the company into disrepute by failing to follow Public Health England guidelines”, but rather, you as my employers who have failed in your obligations to uphold the law where it comes to equality and inclusion. Please note that the legislation that upholds mask exemptions – in specific, the Equality Act 2010 and the Disabilities Discrimination Act – are robust and longstanding laws, and clearly, as such, of much more significance than recent and rushed through “guidelines” (guidelines are not laws).

The illegitimate suspension I am currently undergoing based on the exclusionary discrimination against me has caused me an enormous amount of anxiety and distress, which has been exacerbated by the unreasonable tone and demands of communications from management.

I am an innocent party who has committed no crime and I have not harmed anybody, whilst I myself am being illegally discriminated against and put through a deeply harrowing ordeal. and yet, the language management uses to communicate with me is unnecessarily accusatory and punitive in tone, clearly composed to alarm and distress. I do not find this to be acceptable and expect a more appropriate, proportionate, and respectful tone to be used in future.

I was also deeply distressed to return from visiting my elderly relative on the [date] to find a communication from management summoning me to a Zoom meeting less than 36 hours later. Clearly, such an extraordinarily short time frame does not give me adequate time to prepare, nor to seek the professional advice and assistance I require, and so this unreasonable timeframe further exacerbated my anxiety and distress.

I was able, upon request, to postpone this meeting to a more reasonable time, but it should not have been incumbent on me to make this request and management should not have issued such an unreasonable summons, in what are already very distressing circumstances, as it could be interpreted as if the inappropriate timeframe was issued intentionally, to heighten my distress, and to diminish the chances of my mounting a successful defence.

I would also like to add that management is derelict in its responsibility to produce a comprehensive risk assessment as pertains to mask-wearing. The only risk management has assessed is the risk of transmitting coronavirus, yet there is a vast and weighty catalogue of scientific evidence showing that masks harbour many risks to the wearer, and there is no attempt to assess these risks in the current risk assessment. The risks of wearing a mask include, but are not limited to:

*Dyspnoea (difficult or laboured breathing) - surgical mask wearers had significantly increased dyspnoea after a 6-minute walk than non-mask wearers. (3) Researchers are concerned about possible burden of face masks during physical activity on pulmonary, circulatory and immune systems, due to oxygen reduction and air trapping reducing substantial carbon dioxide exchange.  As a result of hypercapnia, there may be cardiac overload, renal overload, and a shift to metabolic acidosis. (4)

*Bacterial contamination - various respiratory pathogens were found on the outer surface of used medical masks, which could result in self-contamination.  The risk was found to be higher with longer duration of mask use. (5) Surgical masks were also found to be a repository of bacterial contamination.  The source of the bacteria was determined to be the body surface of the surgeons, rather than the operating room environment. (6)  Given that surgeons are gowned from head to foot for surgery, this finding should be especially concerning for laypeople who wear masks.  Without the protective garb of surgeons, laypeople generally have even more exposed body surface to serve as a source for bacteria to collect on their masks.

*Influenza-like illness - Healthcare workers wearing cloth masks had significantly higher rates of influenza-like illness after four weeks of continuous on-the-job use, when compared to controls. (7)

The increased rate of infection in mask-wearers may be due to a weakening of immune function during mask use.  Surgeons have been found to have lower oxygen saturation after surgeries even as short as 30 minutes. (8)  Low oxygen induces hypoxia-inducible factor 1 alpha (HIF-1). (9)  This in turn down-regulates CD4+ T-cells.  CD4+ T-cells, in turn, are necessary for viral immunity. (10)

Any legitimate risk assessment pertaining to masks must take these, and other, risks to the wearer into account – as well as considering the very significant amount of evidence that masks in fact do very little to prevent the risk of viral transmission.

The New England Journal of Medicine editorial on the topic of mask use versus Covid-19 assesses the matter as follows:

“We know that wearing a mask outside health care facilities offers little, if any, protection from infection.  Public health authorities define a significant exposure to Covid-19 as face-to-face contact within 6 feet with a patient with symptomatic Covid-19 that is sustained for at least a few minutes (and some say more than 10 minutes or even 20 minutes).  The chance of catching Covid-19 from a passing interaction in a public space is therefore minimal.  In many cases, the desire for widespread masking is a reflexive reaction to anxiety over the pandemic.” (11)

There is a great deal of further evidence suggesting masks are not effective at preventing the transmission of viral infection, including this 2020 meta-analysis (12), which found that evidence from randomised controlled trials of face masks did not support a substantial effect on transmission of laboratory-confirmed influenza, either when worn by infected persons (source control) or by persons in the general community to reduce their susceptibility.

Although I am legally and medically exempt from wearing a mask, and so am myself afforded protection from the risks that pertain to mask-wearing, it is nevertheless incumbent on any organisation stipulating the use of masks amongst its staff to conduct a full and comprehensive risk assessment taking into account ALL material risks, and weighing them against evidence-based benefits, which [employer name] has clearly not done.

To sum, I have been gravely inconvenienced and upset, and remain deeply dismayed and distressed, regarding my suspension and subsequent treatment from management, which I regard as illegitimate, disproportionate, and unprofessional.

If I am to return to work in my current capacity, it must be under conditions where the law is rigorously upheld in all circumstances and where neither myself, nor any other members of the community who are mask exempt, are subject to illegal discriminatory behaviour as relates to their mask exemption. It must also be in an environment in which, if mask-wearing is to be further stipulated, a full and comprehensive risk assessment has been carried out, which includes thorough evaluation of the risks to the mask-wearer of wearing a mask.

I look forward to your written response within 7 working days.

Yours sincerely,

[Name]

References:

  1. https://www.gov.uk/government/publications/face-coverings-when-to-wear-one-and-how-to-make-your-own/face-coverings-when-to-wear-one-and-how-to-make-your-own#if-youre-not-able-to-wear-a-face-covering

https://pubmed.ncbi.nlm.nih.gov/29395560/

  • B Chandrasekaran, S Fernandes.  Exercise with facemask; are we handling a devil’s sword – a physiological hypothesis. Med Hypothese. 2020 Jun 22. 144:110002.

https://pubmed.ncbi.nlm.nih.gov/32590322/

  • L Zhiqing, C Yongyun, et al. J Orthop Translat. 2018 Jun 27; 14:57-62.

https://pubmed.ncbi.nlm.nih.gov/30035033/

  • C MacIntyre, H Seale, et al. A cluster randomized trial of cloth masks compared with medical masks in healthcare workers.  BMJ Open. 2015; 5(4)

https://bmjopen.bmj.com/content/5/4/e006577

  • ​J Xiao, E Shiu, et al. Nonpharmaceutical measures for pandemic influenza in non-healthcare settings – personal protective and environmental measures.  Center for Disease Control. 26(5); 2020 May.

https://wwwnc.cdc.gov/eid/article/26/5/19-0994_article

  • A Beder, U Buyukkocak, et al. Preliminary report on surgical mask induced deoxygenation during major surgery. Neurocirugia. 2008; 19: 121-126.

http://scielo.isciii.es/pdf/neuro/v19n2/3.pdf

  • D Lukashev, B Klebanov, et al. Cutting edge: Hypoxia-inducible factor 1-alpha and its activation-inducible short isoform negatively regulate functions of CD4+ and CD8+ T lymphocytes. J Immunol. 2006 Oct 15; 177(8) 4962-4965.

https://www.jimmunol.org/content/177/8/4962

  1.  A Sant, A McMichael. Revealing the role of CD4+ T-cells in viral immunity.  J Exper Med. 2012 Jun 30; 209(8):1391-1395.

https://europepmc.org/article/PMC/3420330

  1. M Klompas, C Morris, et al. Universal masking in hospitals in the Covid-19 era. N Eng J Med. 2020; 382 e63.

https://www.nejm.org/doi/full/10.1056/NEJMp2006372

  1.  J Xiao, E Shiu, et al. Nonpharmaceutical measures for pandemic influenza in non-healthcare settings – personal protective and environmental measures.  Centers for Disease Control. 26(5); 2020 May.

https://wwwnc.cdc.gov/eid/article/26/5/19-0994_article

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