This question comes from a correspondent who tells me they are ‘trying to formulate a best practice policy for a new organisation’. They say:

I have heard a variety of discussion in regard to whether someone that has become ill or that has been injured at work should routinely receive first aid or at least be checked by a first aider before leaving for home, GP or Hospital.

One theme (that I am more familiar with) is that all employees should be seen by a workplace first aider if they are sick or injured to insure their safety E.g. How do we know they are well enough to go home? How do we know they didn’t hit their head an hour ago and now want to go home ‘sick’ with a headache? (But should be attending hospital), How do we know they are well enough to drive home? What if no one is at home to care for them? And many more scenarios.

The second emerging theme I am hearing in this risk averse era is don’t  ask/insist a sick or injured person to be seen by a workplace first aider before going home on sick leave as it will greatly increase an employer’s liability if something goes wrong. – E.g. If we have not asked or  insisted they see a first aider before going home sick or injured and they die on the way home or get worse or crash – none of it will be the employers  fault because we have not interfered in their wanting to go home sick.

(In the old NSW Act 2000 section 24 seemed to tell us everyone should receive first aid and no one including employers should hinder this process,  Is this section incorporated at all into any section of the new NSW act do you think? )

Anyone who thinks not asking questions because that will some reduce liability is kidding themselves. The law is concerned with what a person knows, or ought to know. The issue is of course risk assessment. Any policy that is silly and unhelpful is likely to be ignored so a policy that says ‘everyone has to be checked’ is not going to be complied with.

If I turn up at work with a bit of a tickle in my throat and a couple of hours later decide I’m actually unwell but can’t go home until the company first aid officer comes to see me that might be problematic. Not if it’s easy to see them, and I can see them quickly, but if I have to wait for hours or travel across a site it’s less likely to be complied with. It will also turn on the work practices. In my work, I’d just go home. Other work places that may not be so easy and to be allowed to take the ½ day ‘sick’ rather than being seen to abandon my job, I may need to see a first aider, or a supervisor or someone.

As for ‘don’t ask/insist a sick or injured person to be seen by a workplace first aider before going home on sick leave as it will greatly increase an employer’s liability if something goes wrong’ that’s just rubbish. First workers compensation is ‘no fault’. If the person gets injured at work then the employer is liable regardless of those circumstances. If they are involved in a crash because they weren’t fit to drive, or they die of their injuries, the fact that the workplace had a policy to actively discourage seeking assistance is going to lead to more risk. Workers compensation may be no fault but if there is outrageous negligence then there can be liability for greater damages as well as criminal responsibility under Work Health and Safety legislation.

Section 24 of the Occupational Health and Safety Act 2000 (NSW) (now repealed) said:

(1) A person must not, by intimidation or by any other act or omission, intentionally hinder or obstruct or attempt to hinder or obstruct, without reasonable excuse:

(a) the giving or receiving of aid in respect of the illness or injury of a person at work, or

(b) the doing of any act or thing to avoid or prevent a serious risk to the health or safety of a person at work.

(2) A person at a place of work must not, without reasonable excuse, refuse any reasonable request:

(a) for assistance in the giving or receiving of aid in respect of the illness or injury of a person at work at that place of work, or

(b) for the doing of any act or thing to assist in the avoidance or prevention of a serious risk to the health or safety of a person at work at that place of work.

That in no way said everyone had to receive first aid, only that no-one could stop a person from giving, or receiving first aid.   Today the relevant rules are in the Work Health And Safety Regulation 2011 (NSW) r 42 which imposes a duty on the PCBU to ensure that there are sufficient first aiders and first aid equipment for the workplace taking into account the nature of the workplace and the risks involved.  That doesn’t mean every worker has to go and get first aid for every single minor event.

Any organization that thinks a blanket policy will solve their problems has missed the whole point of modern health and safety legislation and that is that it is about risk assessment. A PCBU needs to create a culture where safety and health and concern for workers is paramount. Where the issue is not ‘what will lead to liability?’ but ‘what will lead to a safer work environment and a better supported workforce?’   Do we have the resources so that our staff can access first aid support if an when they need it? Do we trust them to make judgments about their own health and safety but they know for example that if they are injured at work we want to know about it to ensure that they are safe and that any problems with the way work is organized are dealt with? If we want them to report do we make it easy, non-punitive and ensure that they understand that it will not be a paper-work nightmare or lead to personal repercussions?  If they want to go home sick do they understand that their colleagues are interested in their well being and not just wanting to check to make sure they aren’t shirking?

If you want everyone to see a company first aider are there enough of them and where are they located. What are the procedures for signing off ‘sick’? If you are worried about injuries what are the sort of injuries that might occur. A packet of band aids may be enough if the worst anyone’s going to suffer is a paper cut, but you may want to ensure that there are more detailed procedures if the business carries a higher risk.  So a policy that ‘that all employees should be seen by a workplace first aider if they are sick or injured’ seems impracticable say at my workplace, but perhaps not in others. It’s a question of risk assessment.

On the other hand a policy that discourages staff from seeking assistance, because of some belief that  ‘don’t ask/insist a sick or injured person to be seen by a workplace first aider before going home on sick leave as it will greatly increase an employer’s liability if something goes wrong’ is like arranging your own firing squad, issuing the bullets and saying ‘fire’.