COVID-19 TESTING - CAN MY EMPLOYER FORCE ME TO GET A COVID TEST
When you are employed, it can be difficult to say no to your employer even when you do not agree with what they are asking you to do. At the end of the day, it is your job and livelihood that you and your family depend on so why would you want to make waves when you could simply do what you are told?
Well, simply put, there are occasions when you need to know where you stand and you need to know what will happen if you do not do what you are asked from a legal point of view. In the case of COVID-19 testing, there are two legal positions that contradict each other and are causing concern and confusion in the workplace. They are:
1. your common law right to accept or decline medical treatment known as ‘self-autonomy’; and
2. your legal 'duty of care' responsibility for safety and health in the workplace.
Generally, when you enter into an employment agreement, you enter an employment contract. It is not uncommon for employment contracts to contain a clause which requires the employee to attend a pre-employment medical examination before commencing work. The purpose of this is to confirm that you have no pre-existing medical conditions that would result in a Workcover claim being brought by the employee. This clause is not intended (typically) to allow the employer to request you to get medical testing.
We have seen employees come to us with similar wording in their employment contracts. You may have already complied with your pre-employment medical examination, so what is the employer’s right to ask you to get a medical test?
Your obligations as an employee
In Queensland, as an employee, you have a 'duty of care' responsibility for safety and health in the workplace. Under Section 28 of the Work Health and Safety Act 2011, 'duty of care' means that an employee must:
take reasonable care for his or her own health and safety; and
take reasonable care that his or her acts or omissions do not adversely affect the health and safety of other persons; and
comply, so far as the worker is reasonably able to, with any reasonable instruction that is given by the person conducting the business or undertaking to allow the person to comply with this Act; and
co-operate with any reasonable policy or procedure of the person conducting the business or undertaking relating to health or safety at the workplace that has been notified to workers.
Essentially, you have a duty to protect your co-workers in a workplace environment and you have an obligation to comply with reasonable instructions from your employer.
What is reasonable?
What we are trying to point out above is that the term “reasonable” is subjective and unless your employer can show that their instructions are reasonable then their instructions to you may not be enforceable. However, in light of COVID-19, popular opinion will more then likely be that getting a test to ensure you don’t have the infection might be “reasonable” if you have been to a hotspot or have travelled interstate where COVID-19 is more prevalent.
However, if you have not been to a hotspot or travelled interstate what is the basis for the test? The answer is that there probably is not a “reasonable” basis to instruct you to get a test, especially if there are no cases in Queensland. If this were not the case then the same logic could result in an employer instructing you to get any and all medical tests under the sun. Therefore, if it is reasonable in the circumstance, your employer may lawfully instruct you to get a COVID-19 test as it may impact the health of you co-workers if you do not. However, the “reasonable” test, needs to be applied to the circumstances and each case will be different.
Self-autonomy
In 2009, McDougall J in Hunter and New England Area Health Service v A [2009] NSWSC 761 confirmed that the common law (court made law) recognises a competent adult’s right to autonomy or self-determination: the right to control their own body. This is commonly known as self-autonomy or self-determination.
Provided you have capacity, and even if you will die because you refused treatment, you have the legal right to say no to any proposed treatment from any health professional. Medical professionals have a legal obligation to provide you with all information so that you can make a fully informed decision as to whether you will accept or decline treatment. This can sometimes frustrate many health professionals and employers alike. At the end of the day, it is your common law right and any decision made by you must be free from any undue pressure or coercion from any health professional and or your employer.
Justice McDougal stated in the above case the following words, which are more relevant than ever to the COVID-19 pandemic:
“it is in general clear that, whenever there is a conflict between a capable adult’s exercise of the right of self-determination and the State’s interest in preserving life, the right of the individual must prevail (I note, but leave to one side, because it does not arise in this case, the situation where the State takes drastic action to deal with a widespread and dangerous threat to the health of its citizens at large).”
Further, in Airedale NHS Trust v Bland [1993] AC 789, Lord Keith of Kinkel said at 859 that the State’s interest is not absolute, and does not compel treatment of a patient contrary to the patient’s express wishes. In the same case, Lord Goff said at 864 that:
“it is established that the principle of self-determination requires that respect must be given to the wishes of the patient, so that if an adult of sound mind refuses, however unreasonably, to consent to treatment or care by which his life would or might be prolonged, the doctors responsible for his care must give effect to his wishes, even though they do not consider it to be in his best interests to do so. … [t]o this extent, the principle of the sanctity of human life must yield to the principle of self-determination… “.
That being said, if you are in the workplace, you do have a duty of care to not adversely affect the health and safety of other persons. Your employer may lawfully request that you get a COVID-19 test as long as it is reasonable in the circumstance. In light of COVID-19, it would more than likely be a reasonable instruction due to nature of COVID-19, which is well publicised. Remember, it has to be a reasonable instruction, and this will vary from case to case and the determination of what amounts to reasonable is very subjective.
Notwithstanding the above, you always will have your right to autonomy or self-determination in respect of your health care provide you have capacity to make decisions. This may result in you being suspended from work, terminated, being found in breach of your statutory obligations or being unfairly dismissed. It really depends on your personal circumstance and if your employers instructions are reasonable.
Either way, you need to seek legal advice for your individual circumstances before you make any decision.
Please note that this article is written as an informative piece and that you must not take the contents of this article as legal advice. Wallace Law Group accepts no liability from your reliance on this article.
