COVID-19: Can a nurse legally refuse to work?

Nurses are presently working amid the COVID-19 pandemic. But can a nurse legally refuse to work? Most nurses are employed pursuant to a contract of employment. This is a legally binding arrangement between the employer and nurse. It sets out the terms (and there are implied terms also) concerning the legal obligations that both parties have towards each other. Of course, every contract cannot take into account every eventuality. Hence the terms of mutual obligation are drafted broadly and generically.

Some general employer duties include:

• An employer (e.g. health service) has a duty to protect the health, safety and welfare of its employees – that is, to provide a safe workplace. Employers must do whatever is reasonably practicable to achieve this.
• An employer must, so far as is reasonably practicable, monitor the health of the employees (e.g. by monitoring the conditions in the workplace).

Some general employee duties include:

• To take reasonable care of their own health and safety and others (e.g. fellow nurses and clinicians).
• To cooperate with anything the employer does to comply with OH&S requirements.
• To cooperate and work in the best interests of the employer.
• To comply with a lawful and reasonable direction.
• To be punctual and attend ready, willing and able to work, unless there is a lawful reason or excuse not to.

Both parties are required to protect the health and safety of the employee (nurse). But how and to what degree in a pandemic? This is a vexed question, but a starting point is to ask: What are reasonable acts or omissions in the circumstances?

To measure this, one must objectively look at or examine all the circumstances. Obviously, the resources and staff available in a pandemic crisis are greater than in a remotely located primary health centre. Hence, on this area of examination, the standard of ‘reasonableness’ would be higher. But all cases are different and hence vary as to what is reasonable.

For employers to comply with their duties and obligations, they are required to identify risks in the workplace and do what is reasonably practicable to eliminate those risks, or where this is not reasonably practicable, to minimise those risks. This is usually undertaken by implementing control measures, i.e. measures designed to eliminate or reduce the risks as far as practicable.

Whether a control measure is reasonably practicable to implement requires considering what can be done to control (not necessarily eliminate, for this may be impossible or unknown) a risk, and whether it is reasonable in the circumstances to do so. The likelihood of the risk occurring, the degree of harm that might result and the availability and suitability of a control measure are key considerations in determining what measures are reasonable.

No employer will be able to completely eliminate the risk of nurses contracting COVID-19 while carrying out their duties. However, employers must do all that is reasonably practicable to minimise that risk. This usually means during a pandemic implementing control measures, such as the wearing of disposable gowns and facemasks, and having hand sanitiser and access to handwashing facilities. Again, what is reasonably practicable depends on the work being carried out by nurses, in the particular workplace and with the resources reasonably available.

Generally, employers should:

• Determine appropriate control measures (e.g. establishing protective management procedures after a patient tests positive).
• Measures should be clearly communicated to all nurses, including providing clear direction and guidance about what is expected of them.
• Nurses should know when, and in what circumstances, they should stay away from the workplace.
• Continually update control measures (including policies and procedures) when and if necessary.
• Provide information and education to nurses as the situation develops.
• Provide nurses with appropriate protective equipment and facilities, and information and training on how and why they are required to be used.
• Mandate that nurses practise good hygiene according to best practices.
• Limit access to the workplace by other people, including other clinicians, unless necessary.
• Remind nurses they have a duty to take reasonable care for their own health and safety, and to not adversely affect the health and safety of other clinicians (nurses or otherwise).
• Provide nurses with avenues/persons to discuss any or their concerns.
• Clearly educate nurses of their right to access available entitlements.

If an employer undertakes the above measures, a nurse employee has a mutual and reciprocal obligation to work and provide their skill and care, provide suggestions for any improvements concerning safe practices, and undertake their skills diligently and with due care.

If nurses have any concerns, they should firstly raise them with their employer, followed by an appropriate representative body. Nurses are expected to air their concerns and allow time for a reasonable response before taking action such as refusing to work.

It is a challenging time for nurses working at the coalface of this pandemic. Most do so out of a sense of professional and moral obligation without regard to their legal rights and responsibilities. A fact that seems not too readily acknowledged in the media, by politicians and by society at large.

To borrow the phrase, 2020 is truly the year of the nurse.

Scott Trueman is a lecturer in the School of Nursing, Midwifery and Nutrition at James Cook University.

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