Everyone will be familiar with the denial that you are developing a cold. Maybe your nose is just a little runny, or there is a slight tickle in your throat. We can convince ourselves that maybe if we just ignore it and persevere with our work, we can avoid the dreaded lurgy. It means our pay will continue, especially if we have used up our sick leave. Of course, illness pays no care to our work schedules, and a full-blown cold often develops.
Pre-2020 this was a common and mostly benign occurrence. While our colleagues may have been just a little irritated we risked passing our germs to them, little more would come of our decision.
But in this Covid-19 world, this same decision can have significant implications.
Take for example, Sebastien Klem. Klem said he had a light cough and no other symptoms, but, as a conscientious citizen, decided to take a test for coronavirus. Less conscientiously, after getting his test done, he then went to work.
He later tested positive for Covid-19 and was placed into quarantine for two weeks. His employer was unimpressed. In a letter to Klem, they said “he was totally irresponsible” and had violated his obligations towards safety. He was dismissed for serious misconduct.
Klem’s co-workers gave written statements that Klem was much worse than he made out. They said Klem told them he had a fever. One colleague said he was “pale and had red eyes and the heavy cough”.
His employer further claimed Klem ignored an earlier letter they sent to staff suggesting that they should stay home if they had the “slightest symptom”. They also said that given the seriousness of what occurred “there was no other possible punishment”.
Fortunately, none of Klem’s colleagues went on to develop Covid-19. Klem believes he would not have been dismissed had he not been tested for Covid-19, and is challenging his employer’s decision – in the industrial tribunal of France.
Although Klem’s case happened overseas I do not think the result would be any different in New Zealand.
But is this decision fair, and will such policies achieve safer workplaces?
Klem’s decision was one a lot of us could easily have made prior to Covid-19. It is a scary prospect to consider we might have Covid-19, and it is a very human thing to choose to put your head in the sand and hope the problem will go away, or is harmless. New Zealand has its own example of this.
Readers will recall the media attention in August this year when a maintenance worker attended work for two days with a cough at the Rydges Hotel. He put his symptoms down to a pre-existing health condition. He had passed his health checks on both days (such as temperature checks), however his case was not picked up until mandatory testing of staff was introduced.
So how do we manage human nature while these risks are ongoing? The words of Dr Ashley Bloomfield are salient, “the virus is the problem, not people … people are the solution”. On a nationwide scale, the approach to enforcing Covid-19 has been one of compassion. In the case of the Mount Roskill Evangelical Fellowship, it continued to hold church services during the recent level 3 lockdown in Auckland.
Despite that, authorities handled the situation by taking an educative approach. To date, it does not appear that any person has been charged for those events. The sub-cluster now appears to be contained and Auckland has moved to level 1. We will never know whether compliance with Ministry directions would have been better achieved had a more punitive approach been taken.
Whether employers could be expected to be similarly compassionate is another story, however.
A zero-tolerance approach could well encourage people to get tested and stay home. However, if any employee has minor symptoms, it may discourage them from getting tested at all and instead encourage them to hide their symptoms on the assumption they do not have the virus.
If Covid-19 did spread, it would potentially be difficult to establish which employee brought it to the workplace, especially if their symptoms were mild and had gone unnoticed by others. For this reason, care should be taken should employers choose to take the same punitive approach here. Such a policy could serve to discourage open communication which could serve to only heighten risks.
Practical considerations aside, to what extent can New Zealand employers adopt a zero-tolerance approach?
The answer (as with many matters in employment law) is it depends. To justify a dismissal for serious misconduct, the employer must show conduct which seriously and irreparably damaged the relationship of trust and confidence. Failure to follow lawful and reasonable directions can amount to this.
Health advice is that if you have any symptoms of coronavirus you should be tested. If you are tested for coronavirus you may be directed to self-isolate by medical professionals until you get the test results. The Ministry of Health says you should always stay home if you are unwell. Many employers will have issued policies and directions confirming this is their expectation
Furthermore, workers have good faith obligations with their employer which means you must be responsive and communicative with your employer. You must not do anything that is likely to mislead or deceive your employer. In other words, workers arguably have to be frank about their health and their tests.
Failure to follow these directions may well lead an employer to decide they have lost trust and confidence in the employee – especially where the decision was wilful and deliberate. However, where an employee had honest reasons for not following the health direction, like in the case of the maintenance worker at Rydges hotel, this could be difficult to establish.
Ultimately, any employee who does attend work with Covid symptoms, and having taken the test, risks an unsympathetic response from their employer. This is even more likely if that test were returned positive.
If you are unwell, get a test, let your employer know, and stay home until you know you are safe. It is in everybody’s interests – we do not know when the next community transmission will occur.