Testing employees for Hepatitis B - Reasonably practicable?

Employment Update

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A recent WorkSafe New Zealand prosecution highlights the need for an employer's own health and safety policies to be implemented and followed - even if they are industry leading.

Hepatitis B is a highly infectious virus which can be spread through blood/bodily fluids. The virus attacks, and can cause long term damage to, the liver. In extreme cases, it can lead to death.

Facts

Rentokil Initial Limited (Rentokil) operates Initial Hygiene, which provides washroom services to workplaces and public toilet facilities. In 2007, Rentokil introduced a policy (as part of the pre-employment screening process) requiring potential job applicants to be tested to establish whether they were immune to Hepatitis B. If the applicant was not immune, Rentokil would offer the candidate a vaccination prior to commencing employment.

The employee (who was granted name suppression) was exposed to bodily fluids at work during the period 2008 to 2015 by virtue of his role. Despite Rentokil's policy, the employee was never screened for Hepatitis B immunity, nor offered a vaccination. The employee raised the issue of Hepatitis B exposure during a performance review meeting in 2009. His manager told him that testing for immunity was not required but that if the employee was genuinely concerned, he could undergo some testing and claim the costs through Rentokil's medical insurance policy.

The employee contracted Hepatitis B in 2015.

WorkSafe New Zealand (WorkSafe) laid a charge against Rentokil under section 6 and section 50(1)(a) of the Health and Safety in Employment Act 1992 (HSEA). The charge was that Rentokil failed to take all practicable steps to ensure the safety of its employee, specifically in that it failed to take all practicable steps to ensure the employee was not exposed to the risk of contracting Hepatitis B. Rentokil pleaded guilty to the charge (although this was a late plea two weeks before the trial).

It was accepted by the District Court that although the employee was diagnosed with acute Hepatitis B infection in 2015, it was not possible to establish that the employee contracted the virus while at work. However, the essence of this case was about the failure by Rentokil to offer screening and/or vaccination.

Decision

Judge Rowe identified that the practical steps that should have been taken by Rentokil, were:

  1. Ensuring relevant employees were tested to determine whether they had immunity to Hepatitis B and, if necessary, offering employees Hepatitis B vaccinations.
  2. Establishing an effective system for ensuring that its Hepatitis B policy was implemented throughout New Zealand.

Reparation

Rentokil disputed that the employee was entitled to any reparation, claiming that the failure to provide immunity screening or offer a vaccine over a period of one year (up until the offer to have a vaccination) led to no emotional or physical harm. Rentokil also claimed their omission was not directly linked to the employee's infection.

Judge Rowe rejected both these arguments. The clear message from the employee's manager was that neither testing nor vaccination were required and were not part of the company's policy. The failure was also long-standing and persisted for seven years until 2015 when the employee contracted Hepatitis B.

The employee was awarded emotional harm reparation of $10,000.

Fine

When looking at the level of fine, Judge Rowe considered the fact that Rentokil did not offer to make any amends to the employee and had showed no remorse. A Restorative Justice Conference with the employee was refused and an apology letter was only provided one week before sentencing.

Some mitigating factors were identified, such as the fact that Rentokil had cooperated with the WorkSafe investigation. Importantly, Rentokil had reviewed their safety processes and updated their health surveillance procedures by establishing a requirement for a register of all employees working in the Initial Hygiene division to track Hepatitis B results and immunisations. Rentokil also had a favourable safety record and no prior convictions.

Judge Rowe ordered Rentokil to pay a fine of $29,250, concluding that although the failures with regard to the particular employee were a singular breach of Rentokil's policy, the failure to have any form of review system to ensure any other employees had not been missed was a consistent and serious failure.

Take Home Points

  • This case involved a charge under the HSEA. However, similar charges would likely be laid under the new Health and Safety at Work Act 2015, where the duty of a person conducting a business or undertaking (PCBU) is to eliminate or (if elimination is not reasonably practicable) to minimise risks to health and safety so far as is reasonably practicable.
  • Consider the risks and hazards in your workplace, and those that are specific to your industry, and what reasonably practicable steps you can take to minimise and/or eliminate them.
  • When introducing policies into your workplace, ensure that they are disseminated/made readily available to all employees. Put the terms of the policy into practice and regularly review them. There is no point in having a policy if it is not followed and enforced.
  • Do not forget about industry standards, codes of practice, and other WorkSafe guidelines when drafting workplace policies.

If you have any questions, or require further information regarding any aspect of this update, please contact us.