The Covid-19 Delta variant continues to circulate in the community and most of us are feeling the stress and anxiety which comes with this. Many essential workers in Auckland will feel like they face higher risks going to work each day.

The stress of the times seems to be affecting behaviour generally. Retailers have reported a surge in abuse towards its workers, which it has been speculated is due to increased stress and anxiety generally within the population. Some retailers are contemplating equipping workers with body cameras.

Many workers may wonder when the risks are serious enough for them to refuse to work. For example, could you refuse to work if your employer operates a retail business but does not require all customers or staff to wear face masks?

What about if you live in a city outside Auckland and your employer organises an event with more than 50 attendees?

The general law of the land has for many years supported the right of a worker to refuse an instruction or work that presents an unacceptable risk to their safety. Guidance is now provided by the Health and Safety at Work Act and by the Employment Relations Act.

A worker may refuse to carry out work if they believe doing so will expose them or any other person to a “serious risk” to their or the other person’s health and safety. There must be an “immediate or imminent exposure” to the hazard.

Additionally, the worker must attempt to resolve the matter with their employer under the good-faith obligations, preferably before they take any action. If this is not possible, they must promptly attempt to work with the employer to resolve the issue once they have taken such action.

So if an employer is not following the Covid-19 guidelines, by far the most important thing a worker should do before taking any unilateral action is to speak to their employer.

It is so easy under times of stress for an employment relationship to be damaged or destroyed. The employer could well be under significant stress because of economic pressure on their business among other things. Refusing to work because of non-compliance could create significant risks that disciplinary action is taken against the employee (rightly or wrongly).

Where workers raise concerns, it is significantly important that the employer listens carefully to them. It may be relatively easy to change a practice to address and accommodate the concerns the worker has.

Your workers are so critical to your business the last thing you want is to have the relationship breakdown because of the fears that people have. Failure to listen and adjust procedures appropriately could well expose the employer to grievances for unjustified disadvantage or a complete refusal to work.

Employees are entitled to seek their union support and advice on these matters and I would encourage that. An employment lawyer or advocate can also assist.

There are surprisingly few cases where an employee’s right to refuse work has been considered. However, the cases which do exist show the threshold for refusing work is not low.

One case involved two different unions working at the same port. One union decided to strike, and the second union told its members they could refuse to cross the other union’s picket line on the grounds of health and safety.

It said that “emotions run high during strikes” so it would be “concerned for their health and safety if the picket line were crossed”. It speculated that because the workers lived in the same community, there could be “repercussions and reprisals”.

The court held that while the belief was genuinely held, the union’s focus was more on what could occur in the wider community rather than the possibility of confrontation on the picket line.

The court observed there was a dissonance where one union was saying there would be no obstructive picket line, whereas the other believed there would be health and safety risks.

The court concluded that the evidence was not sufficient to establish an “immediate and significant risk”.

In another case, the Employment Relations Authority held that there was no “serious risk” arising from an employee being required to work 26 minutes overtime a day.

The authority accepted that the longer a person worked in a day, the more likely there would be an adverse effect on the worker’s health. But, the authority held that this was an “incremental risk” rather than an “immediate or imminent exposure to a hazard”.

Given the limited case law on the subject, and the tenuous nature of claims which have been argued, there is little guidance on what may be a serious and imminent risk to compare a claim too. Where a worker is in an inherently risky role, there will need to be a material increase in that risk.

A worker will be in the strongest position where health guidelines or orders are being breached by their employer. But, whether this presents an imminent risk to the safety of the employee, entitling them to refuse work, will probably depend on the facts of the case.

For example, an essential worker in Auckland, where there remains a community outbreak, will probably have a stronger claim than a retail worker outside of Auckland where an employer has not been following the Covid guidelines.

Where possible, I would urge anyone to first speak to their employer about concerns, and before taking any action, to speak with their union advocate or lawyer to get a second view.

There is nothing worse than acting out of unfounded fears and damaging or even destroying your employment relationship.