This article was written by Grant Bradley and published on NZ Herald (10 July 2022).

An employment lawyer has warned that bosses who require staff to work while they’re sick with Covid-19 could face claims if workers become ”long haulers.”

With a surge in Covid cases and increased risk of reinfections, employment specialist Jennifer Mills says employers need to be careful. ”An employer could be potentially exposed to a claim for failing to ensure a safe working environment if they have required an employee to work while sick and which has also increased the risks for that employee in developing the debilitating effects of long Covid,” she said.

The Ministry of Health says the long Covid describes signs and symptoms that continue or develop after acute Covid-19 – four weeks from the initial infection.. Symptoms may last for weeks or months after the acute illness.

Business group, the EMA, advises anyone who is sick to stay home and don’t work, so they can recover more quickly. And the Council of Trade Unions says it is aware of disagreements with employers who are expecting Covid infected staff to stay on the job. The CTU is also worried about long Covid. ”If the company knowingly insisted that worker continue working while infected and unwell, and this caused long Covid, that employer should have an obligation and bear responsibility for the worker’s income maintenance, rehabilitation, and recovery,” said its president Richard Wagstaff.

Mills said employers have a primary duty of care to ensure the health and safety of their workers, while they are at work. ”This extends to taking all reasonably practicable steps to prevent the transmission of viruses. Employers ought not require unwell workers to perform work and ought to ensure that when they are unwell that they do not attend work,” she said. However, WorkSafe has clearly stated that it will not prosecute employers in relation to their obligations in this regard, unless there is a systemic failing on their part. Staff could, however, potentially raise claims against their employers for failing to ensure their health in circumstances where sick workers are required and/or permitted to attend work. She said an employee working at home who is sick can’t be required to work. ”To do so would likely give rise to an unjustified disadvantage action on the grounds of breach of health and safety.”

Covid cases are climbing with Friday’s seven-day rolling average of cases is 8313 – significantly higher than the same day last week when it was 6422. The 23 deaths reported on Friday take the death toll to 1651. At the end of last week there were 587 people in hospital with the virus, including nine in intensive care.

Two and a half years into the pandemic, Mills said there was a risk of employers and staff becoming complacent. ”It is generally accepted that familiarity breeds contempt, and that is true of any situation where certain risks continue to exist despite an awareness of the steps required to minimise them.” Mills said it appeared many people were tired of the changes which we have had to make to working and living conditions. ”There is certainly a risk that employers and employees alike could become complacent. That is particularly so, given that more employees are returning to the office, and mask wearing has waned somewhat.”

Anecdotally, she said employers and employees are keen to return to normal as soon as possible. ”Employers are, however, still generally taking the appropriate precautionary measures to ensure that the appropriate control mechanisms have been put in place such as mask wearing, distancing, hygiene and ensuring employees stay at home if unwell.”

EMA head of advocacy and strategy, Alan McDonald, said the organisation had not heard of anyone being asked to work when they were sick. Some people with Covid who were working from home would phone in for meetings if they were feeling up to it but the EMA’s advice was for staff who were sick not to work and aim at recovering more quickly. Covid-infected staff should definitely not to workplaces in order to protect others. McDonald said a bigger issue was the requirement of close contacts of Covid-infected people to isolate and not go to work even if they were testing negative. This was contributing to acute labour shortages.

Wagstaff said presenteeism – turning up to work when sick – was a problem, especially in occupations where workers know the public depends on them. He’s also worried about complacency. ”In general, complacency is unfortunately part of the Kiwi way when it comes to health and safety in the workplace. In terms of Covid specifically, many people have stopped taking the precautions that were commonplace just a few months ago, like isolating, testing, mask wearing etc.”