The lack of legislation around the requirement for children aged nine upwards to wear face masks in primary schools has the potential to cause a "complete and utter disaster", according to a solicitor.
The new guidance was issued at short notice this week and schools were told they had to enforce it.
However, it is currently public health advice without a legal requirement.
Employment law solicitor Richard Grogan told BreakingNews.ie: "This has the potential to be a complete and utter disaster. The position in relation to it is they announced that this was guidance, but then the Department of Education told schools that it was mandatory, there was even the potential threat that teachers who didn’t apply the rules would be subject to disciplinary action.
"Unlike mask wearing in shops and buses for example, there is no statutory basis for it, so if you go into a shop without a mask you can be prosecuted.
"They brought this in with no statutory scheme at all and then decided they were making it mandatory."
Mr Grogan explained that there will be further issues around children who walk or cycle to school without their parents.
You can’t be turfing children out on the side of the street
"If a child arrives to school unaccompanied, and they’re under the age of 12 they cannot be sent home without calling an appropriate adult to come and collect them. You can’t be turfing children out on the side of the street, the school is now left in a situation that they have a child who doesn’t have a mask, who has arrived on their bicycle, who they can’t send home, so where do they put them? They could put them in an isolation room or have them stand in the yard. The latter is unlikely with the cold, so you have to put them in the isolation room. This means they could be in a room with somebody who actually should be isolating, that’s a problem."
Mr Grogan said he has been "inundated" with requests from worried principals, teachers and parents.
"Teachers and principles are now saying, ‘if we deny access to a child because they don’t have a mask or face guard, are we in a situation that we are opening up the possibility of litigation against the school or the board of management?’
"We have been inundated with requests such as, 'what happens if my child isn’t allowed into school?', or the other from principals, 'how do I deal with this issue of a child coming to school without a mask?'"
He said the Government could have avoided the confusion over the guidance by making mask wearing in schools a legal requirement using the Covid emergency powers that are currently in place, he compared it to the mandatory hotel quarantine legislation that has recently been partially resumed due to the threat of the Omicron variant.
"They have produced it on guidance on the basis that it is health advice, but there is specific legislation in place in this country to bring in regulations under the emergency legislation if it's on the basis of health advice, but they didn’t do that.
"The Taoiseach came out and said schools would be indemnified, but no indemnification letter has issued from the Department, so the schools are out on a limb being told to apply something that isn’t the law and which can get them into litigation. From my point of view as a solicitor, creating a situation like this where there could be potential litigation which would be High Court litigation in this kind of case, is opening an appalling vista of completely unnecessary litigation.
"If the Government want to have mask wearing for children in schools then the appropriate statutory instrument and legislation should be put in place. If they want to have it as guidance then they shouldn’t be making threats."
If the Government want to bring in a rule, the reality is you need to bring in legislation.
He added: "If the Government want to bring in a rule, the reality is you need to bring in legislation. The legislation itself can be challenged as unconstitutional, the President can send it to the Supreme Court if the President thinks it needs to be challenged or if the President doesn’t then individuals can challenge the constitutionality of any particular regulation. At least the regulation is then in place, we have the regulations for mask wearing on buses and in shops, it can be enforced by gardaí, everybody knows what the law is. They might not agree with it, but everyone knows what it is. What they’ve brought in in schools is at best advice, or guidance, but it has been packaged up to be legally enforceable, and I have serious reservations that any government should try to put forward something that is an illegitimate argument as to what they’re bringing in, and to put a title or tag on it which is misleading to people."
'Political agenda'
Mr Grogan also expressed a fear that children could be used as pawns in litigation over the new legislation by people with a "political agenda". "What concerns me most is there will be those who bring these claims for an agenda that has nothing to do with whether their child can wear a mask or not," he said.
Exemptions for children with medical certificates has already been an issue, with GPs saying they are not in a position to give such letters.
Mr Grogan said it creates further issues for doctors and parents of children with a legitimate reason not to wear a mask.
This is a complete and utter waste of valuable GP time.
"This is a complete and utter waste of valuable GP time. The position at the present time is that the vast majority of GPs are extremely stressed, tired and overworked and getting to burnout levels. Throwing this in now on top of them that parents are expected to go down to the GP to get a certificate to show their son or daughter can’t wear a mask."
Mr Grogan said it is not too late to resolve the issue by legislation, however, he warned that the longer Government waits, the more potential for litigation.
"Nature abhors a vacuum, and once you’ve got a vacuum the summonses start issuing.
"The Government should get off the fence and draft legislation, stand up behind it, or turn around and say 'we made a mistake, this is just guidance, and we encourage you to follow it'. If they keep going the way they are, the litigation is going to flow.
"Courts don’t want it, lawyers don’t want it, parents don’t want it, schools definitely don’t want it, the State doesn’t need this litigation, therefore it has to be addressed."
