Is attending work while sick unlawful?

 

The current pandemic has put measures such as mask wearing, social distancing and testing into the spotlight.

But did you know that your obligations regarding infectious diseases stem from well before the COVID-19 crisis?

Section 80 of the Health Act 1956 makes it an offence for people to knowingly be in a public place without taking proper precautions against the spread of infection. So, in theory, catching the bus while knowingly infectious with a cold could lead to a fine of up to $500.

How does this affect my workplace?

A “public place’ will include many, but not all workplaces.

The Employment Relations Act 2000 must be read consistently with the Health Act. An employer therefore arguably has a proactive duty under the Health Act to ensure infectious workers do not attend the workplace.

If your workplace is a public place, then coming to work while sick with the flu, diarrhoea, or chickenpox is unlawful, unless proved otherwise. What constitutes “proper precautions” will depend on specific circumstances.

An employer knowingly ordering an infectious employee to attend work will not be deemed lawful.

But hopefully section 80 will not have a big impact on a reasonable employer’s existing practice.

Whether or not your workplace is a public place, it is unwise and undesirable (from both an employer’s and employee’s perspective) to attend work while sick, infectious or not.

Employees risk further damage to their health. Employers face unproductivity, spread of the disease to other staff, and the risk of breaching both the Employment Relations Act 2000 and the Health and Safety at Work Act 2015.

Buckettlaw strongly recommends that workplaces implement a sick leave policy, whereby staff are encouraged to stay away from the workplace when they are sick.