New restrictions as part of the fight against the COVID-19 pandemic – a commentary on the new Council of Ministers regulation, i.e.:
GDZIE NIE MA POTRZEBY NOSZENIA MASECZEK?
NOTE THE FOLLOWING ANALYSIS OF THE LEGAL STATE PREPARED BY AN ASSOCIATE OF OUR LAW OFFICE INCLUDED THE LEGAL STATE AS OF OCTOBER 9, 2020, but this has changed - key changes effective from October 16, 2020. according to the new regulation, it is:
- exemption from the obligation to wear masks in general for all persons traveling together in a car
- abolition of the exemption for recreational sports (including cyclists and runners), currently exempt from the obligation to wear masks are people practicing sports as part of sports competition, sports activities or sports events
In the last few days, the situation concerning the coronavirus pandemic in Poland has dramatically worsened. The number of newly diagnosed infections currently exceeds four thousand every day. And contrary to the assurances of those in power, it is rapidly increasing. As announced, a new regulation has been issued and is in effect from Saturday, October 10, 2020. Knowing its contents is extremely important for two reasons. Firstly, the provisions of the regulation have a significant impact on our daily functioning in the reality of the coronavirus pandemic.
SecondlyAs announced by the government, also from October 10th, a so-called yellow zone has been declared throughout the country (with the exception of districts classified in the so-called red zone), which is due to a rapid increase in the number of infections. Consequently, the regulations provided for the yellow area no longer apply to individuals located in specific, individual districts, but to everyone residing in the territory of the Republic of Poland. For these very reasons, the assumptions of the new regulation should be carefully examined.
First and foremost, it should be pointed out that a new regulation has been issued, not merely that the Regulation of the Council of Ministers of 7 August 2020 has been amended once again. This is due to the need to maintain the clarity of universally binding legal provisions. For the same reasons, the list of districts classified as red zones constitutes an annex to the regulation. However, as the project authors admit, the regulation largely repeats the restrictions introduced by the regulation of 7 August 2020. Therefore, issues such as the main criteria for conducting tests to determine if a person has COVID-19, border crossing rules, or, for example, the obligation to disinfect hands in shops, will remain unchanged. So, what will change and what should be paid particular attention to in the coming days.
The problem of masks, i.e. the obligation to cover the mouth and nose.
The mask-wearing mandate is causing loud and often aggressive debate in public spaces, as evidenced by the so-called mask arguments, such as the one between the Deputy Speaker of the Sejm, Ryszard Terlecki, and Confederation MPs during the last Sejm session, which outraged some of the public. However, setting aside political disputes, and out of concern for our collective health, we should focus on how the current (and upcoming) regulations govern the issue of covering the mouth and nose, rather than on their justification. The new regulation introduces a requirement to cover the mouth and nose (by wearing masks or visors) in both the red and yellow zones. This means such a requirement will be in place throughout the country. Therefore, masks will have to be worn not only in shops or public transport vehicles, but also on the streets, in other words, in public places. De facto everywhere in daily functioning. Therefore, the question arises as to where masks will not be required. Especially in a situation where the entire country is raised to yellow zone status, wearing them during, for example, relaxing on the beach has been considered excessively burdensome.
It is therefore worth considering:
Where (without risking either your health or the obligation to pay a high fine) can you enjoy fresh air without covering your mouth and nose?
Up to now, we were exempt from the obligation to wear masks when in forests. Now, the list of places has been extended to include places which have rightly been deemed to have a similar character to forests.
The obligation to cover your mouth and nose in public places does not apply in the case of:
1) a motor vehicle in which there are or are travelling: at least one person or one person with at least one child as referred to in point 2;
2) a child up to the age of 5 years;
3) a person who cannot cover their mouth or nose due to:
a) pervasive developmental disorders, mental disorders, moderate, severe or profound intellectual disability,
b) difficulties in covering or uncovering the mouth or nose independently;
4) persons performing professional, official or gainful activities in buildings, establishments, facilities, sites and markets (stalls) referred to in paragraph 1, point 2, letters c and d, with the exception of persons directly serving clients or customers during the performance of such duties;
5) a person driving a public collective transport vehicle within the meaning of Article 4(1)(14) of the Act of 16 December 2010 on Public Collective Transport, or a motor vehicle carrying passengers for hire or reward, if the public collective transport operator or organiser of such transport within the meaning of Article 4(1)(8) and (9) of the said Act, or an entrepreneur carrying out passenger transport for hire or reward, ensures separation of the driver from the transported persons in a way that prevents contact within the meaning of Article 2(25) of the Act of 5 December 2008 on the Prevention and Control of Infections and Infectious Diseases in Humans; Journal of Laws – 16 – Item 1758
6) the person in command of the vessel referred to in paragraph 1, point 1, if the steering gear is in a separate compartment or the shipowner ensures separation of the person in command from the transported persons in a way that prevents contact within the meaning of Article 2, point 25 of the Act of 5 December 2008 on the prevention and combating of infections and infectious diseases in humans;
7) drivers carrying out road transport in a crew;
8) practising religious worship whilst it is being carried out;
9) a soldier of the Armed Forces of the Republic of Poland and allied forces, as well as an official of the Military Counterintelligence Service and the Military Intelligence Service, performing service duties, using personal protective measures appropriate to the type of activities carried out;
10) a person whose place of permanent or temporary residence is in public utility buildings intended for educational, healthcare, social or welfare purposes, unless the administrator of such building decides otherwise;
11) of a judge, trainer, and person participating in sport as part of sports competition, sports activities or sports events referred to in § 6 sec. 13;
12) a person staying in a forest, park, green area, botanical garden, historic garden, family allotment garden or beach;
13) horse riding;
14) flight crew members in the cockpit;
pupils and children covered by preschool education, and persons employed in a kindergarten, other form of preschool education, school or educational institution – on their premises, unless the head of such an entity decides otherwise.
The obligation to wear a face mask also does not apply during the solemnisation of a marriage before a registrar or a clergyman. Uncovering the mouth and nose is also possible in the case of:
the need to identify or verify a person's identity, as well as in connection with the provision of services to a given person, if this is necessary for their provision;
2) enabling communication with a person experiencing persistent or temporary communication difficulties;
3) consuming meals or drinks in the premises, catering garden, separate catering zone, referred to in § 30 section 1 point 4;
4) consuming meals or drinks after taking your seat on a train requiring reservations, including meals and drinks served on board the train. As is known, the greatest risk of contracting coronavirus, which spreads via droplets, is posed by population centres. Therefore, it is necessary to examine restrictions for situations where larger numbers of people inevitably gather.
The regulation introduces a limit on the number of people who can participate in weddings, communion or christening ceremonies, wakes and other celebratory receptions. This number is dependent on the classification of the area into a yellow or red zone. – for the red zone, this is 50 people, – for the yellow zone, this is 75 people, – in the remaining area, this is 100 people. These numbers do not include staff serving these gatherings, primarily waiters, cooks and other catering staff.
New regulations also provide for restrictions on the operation of catering establishments in the red zone. According to the draft regulation, these could only be open between 6:00 AM and 10:00 PM. This restriction is not to apply to food delivery and takeaway services. The new regulations will be very harsh for those running discotheques and nightclubs. Following police recommendations, the government has decided to ban such activities until further notice. This solution may raise doubts as to its compliance with the Constitution.
It encroaches upon the constitutional principle of freedom of economic activity through a sub-statutory act, namely a regulation. Of great importance in the context of minimising the risk of infection in large gatherings of people are also the changes concerning the organisation of public gatherings. According to the assumptions presented in the discussed draft, not only their numbers are to be limited, but also the distance between gatherings is to be at least 100 m. An important change, affecting our daily functioning, is the reintroduction of the obligation to present, upon request by the police (or municipal guard), a medical certificate or other document that would confirm circumstances exempting from the obligation to wear face masks. It should be stressed here, moreover, that there has been a significant change in the stance of the police (who were involved in the preparation of this draft together with the Ministry of Health).
It is characterised by considerable firmness and increased rigour. According to statistics cited by the Chief Constable, 80% of responses to breaches of ‘anti-Covid’ regulations take the form of warnings, whilst 20% are financial penalties. The police are calling for this trend to be reversed in light of the steadily rising number of infections, with a view to better mobilising the public to comply with the law. Important changes also concern the organisation of so-called rehabilitation stays. These will only be permitted if both the participant and their carer have previously tested negative for the SARS-CoV-2 coronavirus. On the other hand, there has been some ‘relaxation’ of the rules regarding admission to hospices and palliative care wards.
A patient will not have to present a diagnostic test before admission to a hospice or ward if, due to their health condition, urgent admission for care is necessary. In such situations, the test will be performed after the patient's admission, using public funds. This appears to be important for shaping a coherent policy that considers the well-being and health of citizens as its primary goal. Although a final assessment of the regulation can only be made after its content is published, it is clear that the government has decided to tighten restrictions due to the worsening epidemic situation in Poland. The main aim of this is the designation of the entire territory of the Republic of Poland as a yellow zone, as mentioned in the introduction.
However, regardless of the pace of change and the content of the applicable legal regulations, we must all exercise great responsibility and self-discipline. Covering our mouths and noses, maintaining distance, and frequent disinfection, although sometimes inconvenient, are currently the only widely available means of combating the coronavirus. It is important to adhere to these rules out of concern for our collective health. As a Legal Firm team, we also wish you all health and a swift return to normality, despite the unoptimistic statistics. But this requires common sense and care for our collective safety from all of us. "Those who don't wear it, spread it!" – this slogan may seem like an exaggeration today, but all indications are that in a few days we will all have it on our lips. It is much better to have a radical slogan on our lips, than a plastic tube in our mouths.
Maciej Bujalski
Team Member KancelariaKlodzinski.pl
We invite you to ask questions in the comments.