industry & reform
Pandemic obligation
The legal duties of nurses
working during a pandemic.
By Scott Trueman
N
urses are presently working amid the COVID-19 pandemic.
But can a nurse legally refuse to work? Most nurses are
employed pursuant to a contract of employment. This is a
legally binding arrangement between the employer and nurse. It sets
out the terms (and there are implied terms also) concerning the legal
obligations that both parties have towards each other. Of course,
every contract cannot take into account every eventuality. Hence the
terms of mutual obligation are drafted broadly and generically.
Some general employer duties include:
• An employer (e.g. health service) has a duty to protect the
health, safety and welfare of its employees – that is, to provide
a safe workplace. Employers must do whatever is reasonably
practicable to achieve this.
• An employer must, so far as is reasonably practicable, monitor
the health of the employees (e.g. by monitoring the conditions
in the workplace).
Some general employee duties include:
• To take reasonable care of their own health and safety and
others (e.g. fellow nurses and clinicians).
• To cooperate with anything the employer does to comply with
OH&S requirements.
• To cooperate and work in the best interests of the employer.
• To comply with a lawful and reasonable direction.
• To be punctual and attend ready, willing and able to work,
unless there is a lawful reason or excuse not to.
Both parties are required to protect the health and safety of the
employee (nurse). But how and to what degree in a pandemic?
This is a vexed question, but a starting point is to ask: What are
reasonable acts or omissions in the circumstances?
To measure this, one must objectively look at or examine all
the circumstances. Obviously, the resources and staff available in
a pandemic crisis are greater than in a remotely located primary
health centre. Hence, on this area of examination, the standard of
‘reasonableness’ would be higher. But all cases are different and
hence vary as to what is reasonable.
For employers to comply with their duties and obligations,
they are required to identify risks in the workplace and do what
is reasonably practicable to eliminate those risks, or where this is
not reasonably practicable, to minimise those risks. This is usually
undertaken by implementing control measures, i.e. measures
designed to eliminate or reduce the risks as far as practicable.
Whether a control measure is reasonably practicable to
implement requires considering what can be done to control (not
necessarily eliminate, for this may be impossible or unknown) a
risk, and whether it is reasonable in the circumstances to do so.
The likelihood of the risk occurring, the degree of harm that might
result and the availability and suitability of a control measure are
key considerations in determining what measures are reasonable.
No employer will be able to completely eliminate the risk of
nurses contracting COVID-19 while carrying out their duties.
However, employers must do all that is reasonably practicable
to minimise that risk. This usually means during a pandemic
implementing control measures, such as the wearing of disposable
gowns and facemasks, and having hand sanitiser and access
to handwashing facilities. Again, what is reasonably practicable
depends on the work being carried out by nurses, in the particular
workplace and with the resources reasonably available.
Generally, employers should:
• Determine appropriate control measures (e.g. establishing
protective management procedures after a patient tests
positive).
• Measures should be clearly communicated to all nurses,
including providing clear direction and guidance about what is
expected of them.
• Nurses should know when, and in what circumstances, they
should stay away from the workplace.
• Continually update control measures (including policies and
procedures) when and if necessary.
• Provide information and education to nurses as the situation
develops.
• Provide nurses with appropriate protective equipment and
facilities, and information and training on how and why they are
required to be used.
• Mandate that nurses practise good hygiene according to best
practices.
• Limit access to the workplace by other people, including other
clinicians, unless necessary.
• Remind nurses they have a duty to take reasonable care for their
own health and safety, and to not adversely affect the health and
safety of other clinicians (nurses or otherwise).
• Provide nurses with avenues/persons to discuss any or their
concerns.
• Clearly educate nurses of their right to access available
entitlements.
If an employer undertakes the above measures, a nurse employee
has a mutual and reciprocal obligation to work and provide
their skill and care, provide suggestions for any improvements
concerning safe practices, and undertake their skills diligently and
with due care.
If nurses have any concerns, they should firstly raise them with
their employer, followed by an appropriate representative body.
Nurses are expected to air their concerns and allow time for a
reasonable response before taking action such as refusing to work.
It is a challenging time for nurses working at the coalface of this
pandemic. Most do so out of a sense of professional and moral
obligation without regard to their legal rights and responsibilities.
A fact that seems not too readily acknowledged in the media, by
politicians and by society at large.
To borrow the phrase, 2020 is truly the year of the nurse. ■
Scott Trueman is a lecturer in the School of Nursing, Midwifery
and Nutrition at James Cook University.
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