If summer brings its predicted third wave of infections, long Covid cases and other serious health repercussions will rise too. As an employee, it’s important to know your rights around avoiding infection and – if you do get sick and are unable to work – appropriate compensation.
Back in February, with the looming threat of widespread Omicron infections, I wrote about an employer’s legal duty to try and keep you safe from the virus. Since then, approximately two million New Zealanders have been infected, with over 2,000 dying. Many workplaces did not adopt the most effective protective measures: N95 (or equivalent) masking and HEPA air cleaners. Thousands of workers may have unnecessarily contracted Covid-19 at work.
Unsurprisingly, with the government’s decision to remove almost all protective measures from 13 September, there has been a steady increase in cases. We have now returned to levels not seen since mid-August, with around 4,000 cases per day. Modelling suggests this could reach 11,000 cases per day over summer as we go through a third wave. The deputy director general of health is now recommending people wear masks in closed, crowded and close-contact places, a measure which should never have been removed in the first place.
It’s clear that Covid-19 isn’t going anywhere. Thousands more workers will likely contract Covid-19 in their workplaces. The worksites where spread is most likely, such as cafes and bars, are also the places where many workers fit the demographics of those most susceptible to hospitalisation and death: Māori, Pacific Peoples and the poor.
Two looming problems
In the coming years there are two major factors which will have a huge impact on workers. The first is the debilitating effects of long Covid. Around 84% of people still suffer from fatigue more than two months after infection and 42% of people suffer breathing difficulties. The most common symptoms still affecting people after two years of infection are fatigue, chest tightness, anxiety, dyspnea (shortness of breath) and myalgia (muscle pain). Around 66% of long Covid sufferers have had their work schedules affected and the US is predicting a cost of between $149bn and $362bn in medical expenses and lost income.
The second issue is the impact of multiple infections. Studies show that reinfection brings significant additional risk of organ damage and disorders affecting the lungs, heart, brain, blood, musculoskeletal and gastrointestinal systems. Reinfection also contributes to diabetes, kidney disease, mental health issues and neurological symptoms similar to Parkinsons disease. Despite this being a concern amongst experts for many months, the government’s “Unite against Covid-19” website only reported on the risk on 28 October, more than a month after the government’s protective measures were dropped.
We are potentially heading for a mass disability event that could see thousands of people unable to work. For those already affected by having to take more time off work, or unable to work at all, what remedies are available?
What should your workplace be doing?
Employers have an obligation to eliminate or minimise risks to health and safety so far as is reasonably practicable. Some of the measures an employer should be taking to prevent the spread of Covid-19 are discussed in detail here.
Complaints can be made directly to Worksafe, or through a health and safety representative. If you don’t have a health and safety rep in your workplace, you can elect one and the employer has to cover the costs of attending a training course.
If an employer is not complying with its obligation to minimise the risks of Covid-19 in the workplace, the quickest way to get compliance may be through a health and safety rep. There are two important steps a health and safety rep can take. First, if the rep has attended a course where they gain NZQA unit standard 29315, they can issue a Provisional Improvement Notice (PIN). Upon receipt of the notice, the employer must remedy the problem or ask Worksafe to review the notice. Second, if a rep does not have the NZQA qualification, they can make a recommendation to the employer. Upon receiving a recommendation, the employer must adopt the recommendation or set out in writing the reasons why it is not adopting the recommendation. If these steps fail to remedy the situation, complaints can be made directly to Worksafe, who can undertake their own investigation. This can be an effective way to get an employer to start complying with its obligations to provide a safe workplace but doesn’t really address the situation where you have already been infected with Covid 19 in the workplace.
When can you raise a personal grievance?
Where an employer fails to take adequate measures to minimise the risks of Covid-19 in the workplace, they are not fulfilling their obligations to provide a safe workplace. This can lead to the employee suffering a disadvantage if they contract Covid-19. Where an employee has been subjected to an unjustified disadvantage, they can raise a personal grievance claim against their employer. Some of the remedies that can be sought are lost wages and compensation for humiliation, loss of dignity, and injury to the feelings of the employee.
There are a few hurdles to overcome in establishing a valid personal grievance claim.
First is establishing that there is a disadvantage. To do this, you need to show you caught Covid-19 in the workplace. With the amount of Covid-19 cases occurring in the community, this can be difficult to prove. Employment claims work on a “balance of probabilities” test. This means that it must be more likely than not that transmission occurred in the workplace. For example, if two people in your workplace tested positive and then a day or two later you tested positive, and nobody in your immediate circles outside of work had Covid-19, then it may be more likely than not you contracted Covid-19 in the workplace. Conversely, if someone you live with had Covid-19 and you were the first person in your workplace to test positive, then it may be more likely than not you didn’t contract Covid-19 in the workplace.
Once a disadvantage is established, the next step is showing the disadvantage was unjustified. To do this you would need to show that the employer had not taken reasonably practicable steps to minimise the risk of Covid 19 in the workplace, this being a health and safety requirement for every workplace. Regardless of what government measures are in place, this requirement for a safe workplace remains. So, for example, the government announcement in September to drop legal masking requirements in most workplaces, is separate to whether or not an employer should be requiring adequate masking in its own workplace.
Reasonably practicable steps are based on evidence. For example, if your workplace provided free N95 (or equivalent) masks, maintained social distancing, had good ventilation including the use of HEPA air cleaners and ensured sick workers were not required to come to work, then the employer likely took reasonably practicable steps to manage the risks of Covid-19. Conversely, if you worked in a crowded workplace, weren’t provided adequate masks and there was poor ventilation, then the employer may not have taken reasonably practicable steps to manage the risks of infection.
For a disadvantage to be justifiable, the employer’s actions must be what a fair and reasonable employer could have done in all the circumstances. If it can be shown that an employer hasn’t taken reasonably practicable steps to minimise the risk of Covid-19, then it is very likely the employer’s actions would not be what a fair and reasonable employer could have done in the circumstances, particularly with the significant amount of information from government and in the media regarding measures that could be taken to prevent the spread of Covid-19.
The last step is ensuring the personal grievance is raised within 90 days of the date which the action alleged to amount to a personal grievance occurred or came to the notice of the employee, whichever is the later. Here the action would be the employer not taking reasonably practicable steps to minimise the risk of Covid-19 and you becoming infected. If this is the first time that you are learning about the employer’s responsibility to minimise the risk of Covid-19 in the workplace and that the spread of Covid-19 in the workplace could be an unjustified disadvantage, then it is possible your 90 days starts from today, even if you caught Covid-19 more than 90 days ago.
If you are considering raising a personal grievance on these grounds it would be advisable to contact your union or an employment lawyer to discuss this further. While a personal grievance can deal with wages you have lost, it can’t compensate you on an on-going basis if you are no longer able to work.
When can you claim ACC?
For those who are left in a position where they are unable to work, there is some possibility of raising a claim through ACC. In many cases, work-related diseases and infections are covered by ACC and on-going financial support is available. The difficulty is showing that Covid-19, contracted in the workplace, falls into this category. To be covered by ACC, the employee would need to be able to show:
- They perform an employment task that has a particular property or characteristic or are employed in an environment that has a particular property or characteristic; and that property or characteristic contributes to the cause of the Covid-19 infection.
- The Covid-19 infection is more likely to have been caused by the employment task or environment rather than their non-employment activities or environment.
- If the employee can show the first two, ACC can still decline the claim if the risk of Covid-19 infection is not significantly greater for employees who perform the particular task or work in the environment, than for those who do not.
This gives ACC a lot of room for an out, particularly with Covid-19 so widespread within the community. However, the evidence is overwhelming that masking and ventilation are effective at preventing the spread of Covid-19 and that the longer a person spends in an environment where there is a high risk of spread, the greater the chance they will be infected. Therefore, a person who wears a mask while visiting closed, crowded and close-contact places and only spends a short time in such places, would have a reasonable argument that the risk of infection is significantly greater if they work, for example, eight-hour shifts in a crowded cafe where people are unmasked.
If an employee makes a claim, ACC must investigate the claim as soon as practicable and at its own expense. So if the claim is denied, at least there is no cost to the employee.
If the claim is denied, the final option for the employee is a supported living payment through WINZ. These payments are less than minimum wage, so if the government doesn’t step in with measures to support people suffering long-term illness and disability from Covid-19, we may be condemning thousands more people to poverty, on top of the potentially unnecessary suffering from contracting Covid-19 when it may have been avoided.