Workers might have 'reasonable grounds' to refuse to go to work based on serious, immediate or imminent exposure to COVID-19
By Greg Cain, Partner, and Richard Monigatti, Associate, at Dentons Kensington Swan
Essential workers are vital to ensuring society keeps running during the COVID-19 lockdown. What does a person conducting a business or undertaking (‘PCBU’) need to do to keep workers safe? Can a worker refuse to go into work if:
Legal position
Under the Health and Safety at Work Act 2015 (‘HSW Act’), PCBUs are required to take all reasonable steps to provide a safe working environment for employees. Section 83 allows a worker to refuse to work if they have reasonable grounds to believe that the work they are required to perform is likely to expose them to a serious risk to their health or safety arising from an immediate or imminent exposure to a hazard.
Coronavirus is a hazard. People’s behaviour is also a hazard if it has the potential to cause death, injury, or illness to a person. So, the question in all potentially hazardous circumstances is whether the PCBU is doing enough, and whether the worker has ‘reasonable grounds’ to refuse to go to work based on serious, immediate or imminent exposure to COVID-19.
Is the PCBU providing a safe environment to operate in?
As part of its duties under the HSW Act, a PCBU must ensure it has appropriate health and safety policies and procedures in place to protect its workers.
A central consideration for protection from COVID-19 will be whether the workers have access to appropriate Personal Protective Equipment (‘PPE’) and training on how to use it effectively. The PCBU must not only provide appropriate PPE, but also be confident the PPE is sufficient to minimise the possibility that its workers will contract COVID-19, so far as is reasonably practicable. Each PCBU will need to determine what appropriate PPE is for its work, and ensure it is available for all exposed staff. What is appropriate PPE will be industry specific. As a starting point, PCBUs should ensure they are familiar with the guidance provided by the Government for appropriate PPE in the health care sector (here) and non-health essential workplaces (here), as well as considering their own site-specific risks that might require additional safety measures to be put in place.
Imposing proper safety precautions will also be important, especially in terms of social distancing. This may include stopping people congregating in lunchrooms or taking rest breaks at different times to allow sufficient space in rest areas.
Potential for exposure to COVID-19 in the workplace
Whether potential for exposure to COVID-19 classifies as grounds for a worker performing essential services to refuse to go to work is fact-dependent. Where COVID-19 has not been confirmed in the workplace, the mere fear of eventual exposure at some point during the lockdown is likely to be insufficient. However, if there has been a confirmed case in the workplace, the right to refuse to work may apply.
Various factors will need to be considered. It will depend on how well the sick person has been isolated, whether those exposed to them have been put into self-isolation, and whether the workers have appropriate PPE to avoid infection even if they are exposed to confirmed or potential cases.
A worker lives with one or more vulnerable people
The HSW Act is not only concerned about the health and safety of workers. A PCBU must also ensure, so far as reasonably practicable, the health and safety of other persons is not put at risk from work carried out as part of its business or undertaking.
If a worker reasonably considers that they are at particular risk of catching COVID-19 and transmitting it to a vulnerable person, they could potentially refuse to work on the basis that working creates a risk to another person. As with concerns about a worker’s own safety, the seriousness of the risk of transmission to a vulnerable person is a crucial consideration. The degree of harm that might result to a vulnerable person from the hazard is relevant to the assessment of what it is reasonably practicable for a PCBU to do. However, in most cases, if a PCBU is taking reasonable steps to protect its workers from the risk of transmission, the PCBU is likely to also be taking sufficient steps to mitigate the risk to any third-party vulnerable persons.
Unless a worker will be imminently exposed to a potentially affected person themselves without appropriate PPE, they are unlikely to have reasonable grounds to refuse to come to work due to risk of exposure, whether to themselves or others.
Engagement is key if workers feel unsafe at work
PCBUs should not impose blanket rules on requiring workers to come into work. PCBUs and workers should engage about any safety concerns and attempt to come to a mutually acceptable outcome. First, the PCBU has health and safety obligations to engage with workers about health and safety. Secondly, even if a worker’s concerns do not amount to any physical risk, the PCBU must keep in mind that health includes mental health, and the stress and fear of exposure may amount to a breach of obligations if that risk of mental harm is not managed effectively.
A worker should notify the PCBU and try to resolve any concerns with them. Subject to the terms of any employment agreement or contract for services between the PCBU and worker, refusing to work without properly engaging with the PCBU may amount to a breach of contractual obligations for failing to follow a reasonable and lawful instruction to work.
Under the HSW Act, if a PCBU and its workers (or their health and safety representative) are unable to reach agreement about the risk potential of the work that is unsafe, WorkSafe New Zealand can assist to resolve any issue relating to the worker ceasing to do the unsafe work.
To ensure both the physical and mental safety of your workers, PCBUs should be vigilant about their obligations to workers and ensure the workplace is safe, appropriate PPE is being used, and avenues are in place to deal with the stress and fear of essential workers.
