Today’s correspondent is wondering about:
… the directive to be clean shaven due to COVID-19 for paramedics in Queensland. Does this not impinge my rights in some way, or will it be ‘you have a beard, so you are not covered by work insurance etc’?’
I have been provided with a copy of the email that says:
Under the Work Health and Safety Act 2011, the QAS has primary obligations to ensure, so far as reasonably practicable, the health and safety of our people. As such, we must ensure that all of our employees understand the importance and responsibilities each individual has to ensure they comply at all times with organisational policies and directions that are designed to ensure staff safety.
As per the Medical Director’s Circular No.3/2020 – the minimum standard of PPE required to be worn when clinicians are attending a patient where there are suspicions of any type of infective respiratory condition are as follows: P2/N95 masks, gloves, safety glasses, and disposable long sleeve blue gowns (thumb gowns).
The effectiveness of the P2/N95 mask relies on establishing and maintaining a good seal with the wearer’s face. Please be reminded of the ‘fit checking’ requirements of the P2/N95 mask, which must be performed each time the mask is put on. This is to ensure that the mask is properly applied and that a good seal is achieved over the bridge of the nose and mouth and there are no gaps between the mask and face.
Facial hair, including beards, moustaches, sideburns and/or stubble, between the sealing surface of a tight-fitting facepiece and the face will stop the mask from sealing properly and has the very real potential to risk the health and safety of our workforce. To reduce this risk, all staff are required to be clean shaven where a respirator facepiece comes in contact with the skin before wearing their respirator. This approach is consistent with other allied front line health professionals and emergency service personnel here in Queensland, interstate and internationally.
It is acknowledged that this requirement may have an impact on the personal appearance of some QAS staff, however this decision is being taken in the best interest of ensuring the health, safety and wellbeing of all employees and patients in the current environment and must be complied with. It is expected that all QAS employees will ensure compliance with this direction.
If an employee believes that they have an extraordinary reason whereby this direction is unable to be complied with, please email QAS.WHSState@ambulance.qld.gov.au and these circumstances will be considered in conjunction with the Medical Director.
Let me assume, for the sake of the argument, a person does have a ‘right’ to wear a beard. If that’s true then of course a directive not to wear a beard would infringe that right. But let us look at some less controversial rights claims. The Universal Declaration on Human Rights says:
(1) Everyone has the right to freedom of movement and residence within the borders of each state.
(2) Everyone has the right to leave any country, including his own, and to return to his country.
Everyone has the right to freedom of thought, conscience and religion; this right includes freedom to change his religion or belief, and freedom, either alone or in community with others and in public or private, to manifest his religion or belief in teaching, practice, worship and observance.
(1) Everyone has the right to freedom of peaceful assembly and association…
(1) Everyone has the right to work, to free choice of employment, to just and favourable conditions of work and to protection against unemployment…
(1) Everyone has the right freely to participate in the cultural life of the community, to enjoy the arts and to share in scientific advancement and its benefits…
(And see also the Human Rights Act 2019 (Qld) Part 2, Division 2; and thanks to Sven Lotzvie, commentator on Facebook for bringing that Act to my attention ). That we cannot chose to leave Australia, and others cannot chose to enter, we cannot move within the borders of the ‘state’ (noting that in international law the ‘state’ is Australia, not the sub-national states, NSW, Qld etc); church services are banned an weddings and funerals limited so people are not free to practice their faith in accordance with traditional edicts, our right to assembly and association has been restricted. People have been told they must close their business restricting their right to work and the cultural life of the community has been curtailed. These are all infringements of our rights.
But rights are not absolute. As the Universal Declaration says (Art 29(2)) ‘everyone shall be subject only to such limitations as are determined by law solely for the purpose of securing due recognition and respect for the rights and freedoms of others and of meeting the just requirements of morality, public order and the general welfare in a democratic society.’ The Human Rights Act 2019 (Qld) s 13(1) says ‘A human right may be subject under law only to reasonable limits that can be demonstrably justified in a free and democratic society based on human dignity, equality and freedom.’
One could have an argument that the restrictions are not required to deal with COVID-19 or are disproportionate to the threat and therefore unlawful, but given the world-wide response and the latitude that would be given to executive government, I seriously doubt that either the Supreme Court of Queensland or the High Court of Australia would uphold such an argument.
As QAS have noted, it has obligations under the Work Health and Safety Act 2011 (Qld) to take steps to ensure the safety of its staff and of those who come into contact with staff. These are extraordinary times so extraordinary steps are in order. If the reasonable response is P2/N95 masks and they don’t work if the wearer has facial hair then there are two options, shave or stop working as an on-road paramedic. That a person has a right to work does not mean that another person has an obligation to employ them (if it did, unemployment would always be zero). So a paramedic can insist on their right to wear a beard but provided the decision is not arbitrary (ie provided there are good reasons) a jurisdictional ambulance service does not have a duty to keep employing them.
It is not just a case of insurance. People misunderstand who is insured. A worker who is injured at work, which includes contracting a disease, is entitled to workers compensation (Workers’ Compensation and Rehabilitation Act 2003 (Qld) (and see s 32 for the definition of ‘injury’ which includes ‘a disease contracted in the course of employment, whether at or away from the place of employment, if the employment is a significant contributing factor to the disease’). Workers compensation is ‘no fault’ so if you get the injury, you get the compensation. The obligation to pay compensation falls to the employer (in this case, QAS) (s 46). It is the employer, not the employee, who is insured. The employer must take out workers compensation insurance (s 48) to ensure that there are funds available to meet the employer’s obligations.
But an employer has obligations under common law, work health and safety law and common decency to try to ensure that staff are not injured and that may also reflect their insurance premium. So no, it is not the case that ‘you have a beard, so you are not covered by work insurance’; rather it is ‘you have a beard so you are being exposed to an unreasonable risk and exposing others to an unreasonable risk’.
A right to wear a beard might justify, in some circumstances, saying ‘well that carries this risk to you and if you want to carry that risk, go for it’. But here the risk is also to patients and rights can be curtailed to the extent that the exercise of your right poses a risk to others.
Not only does QAS have an obligation to its staff and patients, so to do the staff. As an employee a paramedic has a duty (Work Health and Safety Act 2011 (Qld) to:
(a) take reasonable care for his or her own health and safety; and
(b) take reasonable care that his or her acts or omissions do not adversely affect the health and safety of other persons; and
(c) comply, so far as the worker is reasonably able, 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
(d) 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.
Further (and thanks to Warren Kelly in the comments, below) the Work Health and Safety Regulation 2011 (Qld) r 46 says that a:
… worker must, so far as the worker is reasonably able, use or wear the equipment in accordance with any information, training or reasonable instruction by the person conducting the business or undertaking.
Assuming that the QAS directive is based on evidence and sound advice failure to follow the directive could put a paramedic in breach of all of those provisions. That is not only a criminal offence (ss 30-34) continued disobedience would, I surmise, be sufficient grounds for dismissal.
The issue is not one of insurance but risk management. You may have a right to wear a beard but QAS is under no obligation to employ a person who, by their behaviour, poses an unreasonable risk others.
Registered paramedics also have duties to their patients. Having been put on notice of what PPE is required, failure to wear it, or wear it properly such that one is exposing a patient to unnecessary risk may be considered professional misconduct. A panel of professional peers might find that such conduct is ‘of a lesser standard than that which might reasonably be expected of the health practitioner by the public or the practitioner’s professional peers’ (Health Practitioner Regulation National Law, definition of “unprofessional conduct”); or a responsible tribunal may find that such conduct is ‘conduct that is substantially below the standard reasonably expected of a registered health practitioner of an equivalent level of training or experience’ (Health Practitioner Regulation National Law, definition of “professional misconduct”). A paramedic who fails to take reasonable steps to protect his or her patient may also be putting his or her registration at risk.
Paramedics are treating those who will be more vulnerable to COVID-19 so even if we assume that for a fit young paramedic the risk that COVID-19 will kill them is low, the risk to their patients may be much higher. Assuming that the QAS directive is based on evidence and sound advice the restriction would be a reasonable restraint ‘for the purpose of securing due recognition and respect for the rights and freedoms of others and of meeting the just requirements of … the general welfare in a democratic society’.
The consequence of non-compliance is not a loss of workers compensation rights but a risk to ongoing registration and employment and potential criminal penalties.