Swine Flu

What if one of your farm workers gets swine flu?

When we last saw Farmer Freddie, he was worried if he would be called upon to pay under his guarantee of his son and daughter-in-law's loan.

Well, unfortunately, he was, and Jack and Diane are now back working on Freddie's farm as employees, saving to pay off the money they now owe him.

But no sooner does Jack start work than he gets swine flu!

Freddie's problem

Swine flu has been declared a notifiable disease by the Health (Infectious and Notifiable Diseases) Amendment Regulations 2009. This means that Medical Officers of Health have significant powers to prevent the spread of the disease, including, in extreme cases, restricting travel and isolating people and places.

Jack does not feel great. But because he has not yet worked for Freddie for six months, he has no sick leave. And since he and Diane need the money, he wants to keep working. Freddie, however, also employs Barney. As an employer, Freddie has a duty to eliminate hazards (including risks of infection) in the work place under the Health and Safety in Employment Act.

What should Freddie do?

Obviously Freddie should send Jack home, both for Jack's sake but also for Freddie's and Barney's. (Freddie may even be able to require Jack to stay away if there is a risk of infection.)

Must Freddie pay Jack?

Freddie wants to know if he has to pay Jack while he is away (Freddie's milk of human kindness - towards Jack at least - has soured recently). Since Jack has not accrued any sick leave yet, nor any annual leave, the answer is no.

Freddie could allow him to take sick or annual leave in advance, but he is not required to.  If Freddie does allow Jack to come to work, Barney may be able to refuse to work if he reasonably believes that by working around Jack he may suffer serious harm.

In this case, because Freddie has not kept Jack away, he may have to pay Barney.

What if dependents are sick?

Barney and his wife Betty have a friend staying with them, who has swine flu. Barney, who has plenty of sick and annual leave, decides to stay home in case he has been infected by the friend. Is Barney entitled to paid sick leave, if he is not actually sick?

Unless his employment agreement says otherwise, the answer is, again, no.

Even if Barney had been quarantined by the Medical Officer of Health, due to his exposure to swine flu, Freddie would still probably not be obliged to grant him paid sick leave because Barney was not ready, willing and able to work.

It would be different, of course, if Betty, or their son Bambam, had swine flu. Then Barney could take sick leave to look after them.

Jack is now back at work (Barney never actually had to have any time off). Freddie feels a cough coming on, and he starts to feel a bit feverish.

He retires to the couch with a cup of tea.


The content of this document is necessarily general and readers should seek specific advice on particular matters and not rely solely on this document.
If you would like further information on any of the topics in this document, please contact your usual Auld Brewer Mazengarb & McEwen adviser.


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