Image: Tina Tiller
Image: Tina Tiller

SocietyNovember 22, 2022

Long Covid is on the rise and employees need to know their rights

Guest writer
Image: Tina Tiller
Image: Tina Tiller

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.

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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.

Twenty percent of current cases are reinfections. That’s two or more cases of Covid-19 in less than a year. For comparison, people get the flu on average about twice every ten years. 

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.

Did this accessory go out of vogue too soon? (Photo: Supplied)

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.

Some workplaces, such as crowded bars, present greater risks than others. (Photo: Getty Images)

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.

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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.

More Reading

    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.

    Keep going!
    Image: Getty Images / Tina Tiller
    Image: Getty Images / Tina Tiller

    SocietyNovember 22, 2022

    I was in care for just 10 days as a child and I was sexually abused

    Contributing writer
    Image: Getty Images / Tina Tiller
    Image: Getty Images / Tina Tiller

    Abused as a 12-year-old, David Hill’s circumstances were different from many of those now telling their stories to the Royal Commission of Inquiry into Abuse in Care, but his sense of confusion and shame was the same – as was his urge to stay silent for years.

    This article contains references to sexual abuse. Please take care.

    They were talking about the Abuse in Care inquiry. “This sexual abuse business is a real industry,” said Voice One. Voices Two and Three chimed in: “Uncle pats you on the bottom when you’re three, your life’s ruined… Political correctness…”

    I could have said something, but didn’t. Braver voices did speak up: “Hang on, eh?….There’s some shocking cases.”

    Why could – should – I have spoken? Because I was sexually abused as a kid. If you haven’t already rolled your eyes and headed off, I’ll give you the details.

    I was 12. I ended up in hospital because a cricket ball had impacted my left eye, and I spent ten days in a ward full of other damaged male eyes, all adult except for me.

    For some 1950s reason, we weren’t supposed to move around. Maybe they worried we’d walk into doorways. So a male orderly wheeled us everywhere.

    The orderly (I’ll call him B), was in his 40s-50s, brimming with bonhomie. Every time he entered, he’d josh patients into grins and laughter.

    I’d been hit by a cricket ball? That must have stumped me? Bowled me over? Silly stuff, but I felt flattered to be acknowledged by a grownup. It was, I realised years later, the first stage in grooming.

    A couple of days after my admission, B wheeled one of the others back into the ward, then walked across, sat on the edge of my bed, and began talking to me. I was surprised, but again, I felt flattered.

    Two minutes, and his hand was on the bedclothes covering my knees. I can’t recall how I felt about that. Another minute, and the hand was paddling at my groin.

    I was frightened; I do know that. And bewildered. I knew nothing about sexual molestation or paedophiles; the words weren’t in my or my parents’ vocabularies.

    It set the pattern for my remaining days in hospital. B would enter the ward, and my stomach would knot. He’d joke with the others; sit on my bed; fumble more and more insistently at my crutch, his body turned so nobody else could see what he was doing.

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    I’d try to push his hand away, keeping my own movements as small as possible, because I didn’t want anyone else to know what was happening. He’d already made me complicit, established a secret between us.

    A couple of times, I protested: “Cut it out.” But B was an expert at this, and his reply came instantly: “I’ll cut them both out.” Somehow, that drew me further into apparent acquiescence.

    Once, he told me what I now recognise as a fabricated story about how at dinner, his teenage son would describe how he and his girlfriend fondled each other. “Natural to talk about it, eh?” It was all part of the grooming.

    So, the question. Why didn’t I tell anyone?

    Tell whom? The doctors were remote and Olympian. The nurses were all young women, and for a gauche male pubescent to describe B’s actions, mention the body parts involved, was unthinkable. My parents? Equally unthinkable.

    The other guys in the ward? But they were all adults, remember. I’m sure B never tried anything with any of them. I was a child, lacking any power or authority.

    And anyway, I felt soiled, grubby. As I say, B had made me an accomplice. To tell anyone meant admitting I’d taken part in what happened. And maybe there was some whiff of depravity about me that attracted him. It was a classic course of manipulation on his part.

    It lasted till I was discharged. I developed a stammer for a year, but otherwise I was “unharmed”. Except that I never told anyone, parents or friends or partner, till half a century later, when the guiltlessness of the victim in such cases had become an accepted fact.

    Even then, as a man who’d worked with words, ideas, stories for a long time, I heard my voice start to catch and stumble. I couldn’t look at my wonderfully supportive wife or the good friends who were listening. At the end, I heard myself swallow, gulp, knew I should have spoken out far, far earlier.

    Long before then, one other event helped. Two years after I left hospital, B’s name was in the paper. He’d started molesting another patient “a youth”. But this time, he’d come up against someone brave. The victim complained, and in the late-ish 1950s, what courage that must have taken.

    B was tried, convicted, sentenced. I read the reports surreptitiously, and realised I hadn’t been the only one; I hadn’t exuded any special air of decadence. I took deep breaths and a miasma seemed to lift from me.

    I should have spoken up when I heard those comments of my opening paragraphs. I should have said that such abuse is ubiquitous, that a protected white male can be a target, too, that for victims to come forward is an act of courage, not any sort of self-promotion. I didn’t, so this is my belated attempt at compensation.

    Society