This article was written by Dan Kynaston, Tommy Randall, and Lachlan Forrester.
Introduction
The COVID-19 pandemic has placed enormous pressure on the not-for-profit sector. Organisations must balance the requirements of social distancing rules, necessary to curb the virus' spread, with the need to assist vulnerable members of the community.
In this note, we look at two questions that not-for-profit organisations (NFPs) will need to consider:
- Can they continue to provide face-to-face services to the community, especially if employees have concerns about contracting COVID-19?
- What happens if they decide they cannot continue to provide those services to the community, because of COVID-19?
Can my organisation continue to provide face-to-face services?
Under current Government restrictions, an NFP must be deemed to be an "essential service" as a prerequisite to providing face-to-face services during COVID-19. While each State and territory jurisdiction has its own requirements, many continue to allow (and encourage) organisations to provide ongoing community support services.
Where services are able to be provided, NFPs must ensure that they can provide a safe working environment for their employees who are providing these services during COVID-19.
Employment obligations
Employees are required to follow all lawful and reasonable directions from their employer that fall within the scope of the contract of employment.[1] Therefore, an NFP may direct its staff to continue to perform face-to-face services so long as:
- It is lawful to do so;
- It is reasonable to do so; and
- The services that the employee is to perform fall within the scope of the employee's contract of employment.
Assuming that the NFP is deemed an essential service, the key issue concerning the lawfulness of a direction to provide face-to-face services is whether it may otherwise constitute a breach of obligations under the Work Health and Safety Act 2011 (Cth) and State and Territory WHS statutes (WHS legislation).
Section 19 of the Commonwealth WHS legislation requires an employer to ensure, so far as is reasonably practicable, the health and safety of its workers and not to put their health and safety at risk.
A direction to employees to continue to provide face to face services would be consistent with the obligations owed by an NFP under the WHS legislation, so long as the employer takes reasonable precautions for the safety of employees.
For example, NFPs should ensure that they:
- Stay up to date on the latest government advice on preventative measures;
- Implement general precaution measures such as providing staff with necessary PPE, with advice and training on how to modify the provision of services so as to minimise physical contact where possible, and with ongoing updates regarding Government advice on best practice measures to avoid infection; and
- Put in place measures to ensure that they will be aware if a client (or someone in the client's household) has tested positive for COVID-19.
If there is a confirmed COVID-19 case in a household, it may not be lawful to direct staff to attend those premises. As COVID-19 is highly contagious and potentially life-threatening, there are few precautions which can be reasonably taken except to isolate the infected person.
A direction to an employee to attend that household to provide face-to-face services may be inconsistent with WHS legislation, unless measures can be put in place which significantly reduce the risk of infection.
In assessing whether an employer's direction is reasonable, the courts will consider whether the employer has a 'legitimate interest' in making the direction and what would constitute reasonableness in the circumstances.[2]
Many NFPs will have a legitimate interest in continuing to provide face-to-face services, especially as these services are aimed at some of the most vulnerable members of the community. Provided reasonable precautions are taken to prevent transmission, a direction to employees to continue to provide those services would be reasonable. Ultimately, the NFP needs to ensure that it provides sufficient information to employees regarding the precautionary measures that have been put in place so that they are comfortable they are not being placed at unnecessary risk.
What happens if the organisation decides it can no longer provide face-to-face services to the community?
NFPs may decide that they cannot continue to provide face-to-face services due to the risk of employees contracting COVID-19. If an NFP decides to stop providing face-to-face services to a client because that client, or a person in the same household, has or is likely to have contracted COVID-19, could that client claim to be the subject of disability discrimination?
Human rights and anti-discrimination legislation
Firstly, it is unclear whether a positive COVID-19 diagnosis is a disability under the relevant legislation. For example, the definition of disability under the Disability Discrimination Act 1992 (Cth) includes:
- The presence in the body of organisms causing disease or illness; or
- The presence in the body of organisms capable of causing disease or illness.
It is unclear from the Explanatory Memorandum to the Disability Discrimination Act whether this definition was intended to include viruses. To compound this problem, the scientific community remains undecided about whether a virus is an organism.
Whether or not a COVID-19 diagnosis constitutes a disability, section 48 of the Disability Discrimination Act provides that discrimination on the grounds of a disability which is an infectious disease is not unlawful if the discrimination is reasonably necessary to protect public health. There are similar exemptions in discrimination legislation in each State and Territory.
Regardless of whether a positive COVID-19 diagnosis does in fact constitute a disability, it most likely would not be unlawful to discriminate in the provision of services on the basis of a positive diagnosis of a client, so long as the discriminatory act (i.e. refusal of service) was:
- Done for the protection of public health; and
- Was reasonable and necessary.
In this case, if an organisation were to refuse to continue to provide services because of a reasonable concern that persons in that household had been diagnosed with COVID-19, and considered that it was not possible to take precautions to prevent its employees contracting COVID-19 while continuing to provide services, then we consider that that refusal would not be unlawful.
Conclusion
The COVID-19 situation is raising a plethora of legal and practical issues for many businesses and organisations. NFPs should take steps to ensure that they are putting in place all reasonable protections for their employees who are continuing to provide face-to-face services in this challenging time.
Where NFPs have any doubt about their employment obligations in the context of the COVID-19 situation and its effect on their operations, they should seek legal advice.
[1] R v Darling Island Stevedoring & Lighterage Co Ltd; Ex parte Halliday (1938) 60 CLR 609 (Latham CJ).
[2] Griffiths v Rose (2011) 192 FCR 130.
