Gaping holes at our border: Why are border workers not being tested?

26 August 2020

New Zealand reacted hard and fast by locking its population down when Covid-19 emerged in this country. Prime Minister Jacinda Ardern has proved to be an empathetic leader who provided people with reassurance and confidence.

By her side in most press conferences was Dr Ashley Bloomfield, an able scientist whose pragmatic messaging helped ease the pain of the lockdown.

Given all that we went through as the "team of 5 million" it seems upsetting that our border appears to have gaping holes in it. Is that why the virus has re-emerged in our community?

New Zealanders returning from overseas are placed in quarantine as they should be. So far so good.

However, a hole has emerged with revelations that those who are working at the border and in the quarantine hotels are not regularly and methodically tested.

Routine testing has been suggested. But how many of those workers have been regularly tested? And how many have never been tested? What are the details?

It emerged recently that reportedly more than 60 per cent of people working at the border had never been tested. While there were everyday checks for symptoms - including temperature checks - the fact that routine testing of New Zealand's frontline workers was not the case came as a shock to many.

This issue raises some important questions about employer powers and obligations in respect to health and safety.

Because the Government and the Ministry of Health seem to be shifting ground on these issues, people are losing confidence and border testing is becoming a political hot potato in the lead up to the election.

Worse still, we are now told by the prime minister that some of the staff are declining to be tested at all.

What does employment and health and safety law have to say about these crucial issues?

Can a worker be required to take a Covid-19 test? Comparisons can be made here with employment-related drug testing.

The general rule of drug-testing employees is that an employer may only ask employees to undergo testing if it is in the employment agreement or, in certain cases, if there is a clear testing policy.

Furthermore it must be reasonable for the employer to require an employee to undertake a test, even if it is in the employment agreement. Ultimately it is a balancing act between ensuring workplace (and community) health and safety, while avoiding unreasonable intrusions into the rights of employees.

The key factor here that distinguishes Covid-19 testing from drug testing is the broader risk to fellow employees and to the general public. Lives are at risk from this disease, and left to transmit without intervention, the public health system would probably be overwhelmed.

Furthermore, the cost of lockdown to the economy in managing the disease is measured in the hundreds of millions of dollars. Elderly are locked in isolation and rest homes throughout the land. There is no question that reasonableness favours testing.

Those employed at the border and in quarantine hotels should obviously have had a provision in their employment agreement or on the employer's policies requiring regular testing.

If not, it is possible to make such policy for health and safety reasons after proper consultation with employees. Whether such policies or terms of employment are in place for all border workers does not appear to be public knowledge.

It has been reported that some contracting companies at the border declined to implement testing.

One wonders how they were given the contracts if this is their position. It should have been a term of the commercial contract with the Government that the employees agree to be tested in their employment agreement.

Under the Health and Safety at Work Act, employers have an obligation to ensure the health and safety of workers and others who may be put at risk from work carried out as part of that business.

Indeed, just this year, Affco New Zealand was fined $46,000 and ordered to pay reparations of $50,000 for failing to implement control measures of highlighted risks of infection at its plant.

This failure led to the life-threatening infection of a worker following an offal spill. Employers who fail to ensure adequate health and safety protections against Covid-19 may be in breach of health and safety obligations, and can face hefty fines.

It's also important to consider the powers granted to the health minister and the director-general of health under the Covid-19 Public Health Response Act and the Health Act.

These powers enable these people to, among other things, require persons to undergo testing for Covid-19.

There are many things the authorities can do to protect our safety by ensuring workers at the border and in quarantine facilities can be and are tested.

The problem needs fixing urgently and there needs to be a clear authoritative statement on what happened, what has been done, and what will happen in the future. These issues are too important for obfuscation.

The Government has a good strategy well communicated by the prime minister and the director-general of health. Faults in implementing it need to be fixed urgently.