Face Coverings Regulations published [2021]

The Health Protection (Coronavirus, Wearing of Face Coverings) (England) (Amendment) Regulations 2021 https://www.legislation.gov.uk/uksi/2021/1400/made/data.pdf were laid before Parliament at 5 pm on the 9th of December 2021 and come into force today, the 10th of December 2021.

These amend The Health Protection (Coronavirus, Wearing of Face Coverings) (England) Regulations 2021 https://www.legislation.gov.uk/uksi/2021/1340/made/data.pdf which originally came into force on 30th November 2021. Together these regulations outline in detail the circumstances in which and places where face coverings must be worn and are not required to be worn in England and Wales.

There are exemptions and enforcement provisions as always, but the main issues that licensed business operators will be looking for is clarity on where and when face cover coverings must be worn. In summary:

Part one of the regulations covers places where coverings must be worn, and includes cinemas, museums, galleries, concert and exhibition halls; conference centre; members’ clubs and social clubs; public areas in hotels and hostels; bingo halls; casinos; theatres; snooker and pool halls; amusement arcades and adult gaming centres; games and recreational venues (including laser quest, escape rooms and recreational driving facilities); circuses; sexual entertainment venues as defined by the Local Government (Miscellaneous Provisions) Act 1982; sports stadia and motorway service Areas. This is not a full list.

Part two of the regulations covers places where face coverings need not be worn and includes restaurants, including restaurants and dining rooms in hotels or members’ clubs; cafes and canteens; bars, including bars in hotels or members’ clubs; public houses; businesses which consist wholly or mainly of the provision of water pipes for the consumption of tobacco (shisha lounges); nightclubs, dancehalls and discotheques and any other venue which opens at night, has a dancefloor or space for dancing by the public and provides music for dancing.

There is an an important additional exemption, for any other premises, or part of premises, which are being used wholly or mainly by people eating or drinking. This would seem to cover any premises that are not otherwise explicitly listed in part two, but has people eating or drinking, perhaps for example a sandwich shop.

However, there was an important caveat to this, namely that this exemption does not apply in relation to any part of the premises in which people are not eating or drinking. Businesses will therefore need to assess carefully what part of their premises, if they are relying upon this exemption, are being used wholly or mainly by people eating or drinking, and those that are not, for example a café or restaurant in a retail space, museum or hotel where face coverings may not be worn but would need to be worn in the retail space, museum or hotel itself.

Remember, the general exemption for explicitly mentioned businesses, for example public houses, bars and restaurants, does not require customers to actually be eating or drinking. These are general exemptions.

If it assists interpretation, the Explanatory Memorandum to the regulation states regarding hospitality settings:

“People will not be required to wear face coverings in any other settings, including hospitality settings. This will encompass settings such as pubs, bars, and restaurants….. These settings are excluded because mandating face coverings in hospitality settings would be impractical as most people will be eating and drinking and would be likely to have a high negative economic and social impact……”

Equally for those premises where face coverings must be worn, there is a reasonable excuse for persons to remove their face covering in order to eat or drink.