Impairment vs Risk vs What Should an Employer 'Reasonably' Know...? There are likely to be many “Bobs” in this country, i.e. people who turn up to work apparently “impaired” for one reason or another. Consider this as a hypothetical case, and examine the implications, then extrapolate it back to Racheal’s query. Remember that the Privacy Act allows for the acquisition of personal information where it is demonstrably relevant and necessary in the particular circumstances, or is already in the public domain.
Billy-Bob is a commercial traveller / salesman for a veterinary product supply company. He is based in a large city. His sales territory includes the city, surrounding towns, and a large rural area. He has a company vehicle which he takes home to garage each night. As compensation he has full private-use rights to the vehicle, while the company services and maintains it. Billy-Bob usually calls into the office depot most mornings if he is not out of town overnight, to pick up promotional materials, make calls, receive leads etc, and he often picks up urgent product orders to deliver to customers in rural NZ. He visits veterinary clinics, and occasionally farmer clients of those clinics.
Billy-Bob is re-married, with three teenagers and a newborn in the household. Three months ago he “wet the baby’s head” with the office staff.
Unbeknown to his employer, Billy-Bob is also an experienced Bar Manager and is employed by a large venues management company. This role requires him to have oversight of staff and service delivery at functions and events run by the company. This typically involves weekends and occasional weeknights.
Office depot staff have noticed some behavioural changes in Billy-Bob but are unsure why. There has been an increase in customer complaints regarding appointments not kept, and some promised urgent deliveries not made, or made late. Billy-Bob’s manager is thinking he probably needs to have a chat to Billy-Bob about his work performance but is unsure how to initiate the process. Before he can, Billy-Bob’s wife calls the manager to advise that Billy-Bob is in hospital with a broken leg. He fell down the steps of a farmers woolshed. He is in plaster to the groin and will be unable to drive a vehicle. He is likely to be off work for 8 weeks minimum. She is concerned that he has been working long hours, driving long distances, and has been quite tired lately. She is enquiring about his ACC compensation payments. A loss of income will have a serious impact on the family finances. Billy-Bob’s manager is pondering his responsibilities in this situation, and what he should have done.
A prudent employer will have established policies/rules around their employees working more than one job e.g. secondary employment. This policy should be made clear to prospective employees prior to engagement.
The rationale is twofold.
Rationale 1) If an employee is working two jobs (or more) their risk of injury / incapacity will be increased due to the greater overall exposure time to work related hazards, such as potential fatigue, amongst others. The risk is likely to be further exacerbated if one job is somewhat more hazardous than the other. The likelihood of fatigue alone becoming a risk factor in either job is obvious if both jobs are performed within the one 24-hour period.
Again, of course, a prudent employer will have identified the work-related hazards and put in place the controls required to mitigate risk of harm to employees as far as reasonably practicable. As part of their pre-employment screening employers should be asking questions regarding any predisposing conditions a person may have that would increase their risk of being harmed in the job. This may be in the form of a health questionnaire, and any red flags raised referred for an appropriate professional assessment. After all, an employer must ensure a person is not harmed in the course of their employment as far as reasonably practicable, and ensuring their physical and mental status is compatible with the role is essential. The current discussions regarding Covid-vaccinated vs unvaccinated employees in critical roles is a topical example.
Where activities a prospective employee may undertake outside of the offered employment potentially present a high risk of injury this could impact negatively on the employer’s ability to meet their business commitments in the event the employee is injured / unwell and thus unable to work. While the likelihood of an accident external to the business negatively impacting an employee’s ability to perform all of their duties may be a more difficult assessment to make it would nonetheless be relevant in critical roles or where unique skills are involved, e.g. surgeons, pilots, etc.
So maintaining business continuity where the availability of specialist skills is essential and depended on may well be grounds for requesting of employees, both prospective and current, information about the nature of any extracurricular activities, assessed on a case-by-case basis. Certainly questions about health status can be asked where relevancy can be established, and questions about other employment commitments can be asked due to an employer’s obligations to pay earnings -related compensation to injured employees as provided by the Accident Compensation Act 2001.
Rationale 2). An employee injured in the course of their employment and unable to attend work is entitled to earnings -related compensation for all of their lost earnings. If the injured person has more than one employer i.e source of PAYE earnings, they are entitled to earnings -related compensation based on the total lost earnings, i.e. from all jobs. (See ACC Act Sch.1 Cl.13]
The employer in whose employ the employee was injured is liable to pay earnings -related compensation based on the aggregate sum of all the employees lost earnings, at the rate of 80%, for the first week of incapacity. ACC then pays the same amount for the subsequent weeks of incapacity from work. The maximum amount of weekly earnings -related compensation that ACC is liable to pay is $1341.31.
In the hypothetical “Billy-Bob’s case above, if Billy-Bob’s earnings were $1200 / wk from the Vet Supply company, and $600 / wk from Venue Management, Vet Supply would be liable for $1440 compensation for the first week lost earnings (i.e. 80% of $1800.00), and ACC’s liability would be $1341.31 for the subsequent weeks of incapacity. Vet Supply would be paying more in compensation for the first weeks lost earnings than Billy-Bob would actually have earned.
If Billy-Bob had been injured while working for Venue Management they would have been liable for $1440 first weeks compensation, i.e. almost 2 ½ times his usual earnings from them.
ACC’s payments would remain the same. However earnings -related compensation (and other costs) is recorded against individual employers accounts by ACC for the purposes of Experience Rating. Where accumulated costs of claims exceed the industry average for that employer ACC has the ability to increase their levies accordingly.
For these reasons employers should be screening prospective employees for suitability and capability, asking the right questions to identify and manage extraordinary employment related risks, and managing those potential risks to their business, as well as doing their utmost to protect their employees’ well-being.