Your questions answered: Is asking workers about infectious or communicable diseases compliant with anti-discrimination laws?

By Portner Press on May 31st, 2019
  1. Bullying, Harassment & Discrimination
  2. Discrimination in the workplace

Q
I am writing a policy and procedure for the control of infectious and communicable diseases in a community service organisation. Service users range from children to the aged and frail. The general approach to control is to assume the presence of infectious disease and use universal precautions.

It seems reasonable to ask a worker to inform their supervisor that they have an infectious or communicable disease so that an informed decision can be made about whether the worker should interact with clients that may be in an at-risk group.

That works fine for things like cold and influenza, but my understanding of anti-discrimination law in NSW is that an employer does not have a right to demand that an employee report things like hepatitis or AIDS; an employee could have either of these and be unaware they are infected.

Then there are things like rubella, whooping cough and now Ebola where doctors may be required to report to NSW Health and the person with the disease quarantined for a period to prevent spread of infection.

What is the responsibility of a worker when they know they have an infectious or communicable disease?

A
The issue with discrimination law is that you cannot discriminate against a worker because of a disability. This does not mean that information about infectious diseases cannot be requested from a worker. The issue is what you do with that information.

If you exclude the worker from certain work because of the disease, then at first blush this is discrimination. However, it will not be discrimination if the exclusion is because the person with the disease is unable to perform the inherent requirements of the job.

Before determining whether the person cannot perform the inherent requirements of the job, you must see whether any reasonable adjustments can be made to the job (e.g. providing face masks, gloves, etc. to limit the risk of spread of infection).

If adjustments can be made but they would pose unjustifiable hardship on the business, then the adjustments will not be considered reasonable and you would be entitled to exclude the worker from particular activities.

If reasonable adjustments can be made, they must be made. Otherwise, to exclude the worker in those circumstances would be discrimination.

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