The ABC stopped giving shifts to an employee who asked if she could wear a face shield instead of a mask at work. HRM speaks with an expert about how employers balance WHS obligations with discrimination claims.

Last week the Federal Circuit Court heard the case of a part-time makeup artist who is suing the ABC, claiming she was discriminated against for refusing to wear a face mask while at work.

The employee, who says she has Lyme disease, believes wearing a mask at work led to her fall ill  in March last year. When her employer said it was required of all employees to wear a mask at work, she offered to wear a face shield instead. 

According to a report from Workplace Express, the ABC felt a face shield didn’t provide “any physical barrier to prevent droplets spreading in a downward motion onto the presenter, whereas a face mask provides a closer fit and comes underneath the chin to prevent both outward and downward expulsion/movement of droplets”. 

The broadcaster believed this was especially risky as makeup artists tend to stand above a presenter as they work. 

The employee says she was targeted by the ABC when, in September last year, she was forced to go on paid leave followed by unpaid personal leave, and believes she was viewed as an “anti-vaxxer” and “conspiracy theorist” by some of her colleagues.

Diana Diaz, special counsel, workplace relations and safety at Madgwicks Lawyers, says this case highlights a tricky tightrope for employers to walk. 

“This case is interesting because it looks at the employee’s rights under discrimination law, but also the employer’s obligations under health and safety law,” says Diaz.

“It’s not enough for an employee to just say that they don’t want to, or can’t do, something. There needs to be a discussion so that both sides better understand each other’s positions.”

When is a disability not protected?

This case is particularly complex because it’s not clear whether Lyme disease is considered a disability under discrimination law.

Lyme disease is a tick-borne infection caused by bacteria. According to NSW Health, Australian ticks do not carry this bacteria, but it is commonly found in parts of Asia, Europe and North America. It cannot be spread from person to person.

Symptoms of Lyme disease include a pink or red rash, fever, headache and tiredness. Some strains also cause joint pain. If left untreated, it can cause infection in and around the brain and heart, as well as joint inflammation and long-term neurological symptoms.

At first the ABC told the employee she could take breaks by wearing a face shield in the green room or a private meeting room. But it decided to stop rostering her when it requested medical evidence for why the employee could not wear a mask and she presented them with a medical certificate from her naturopath. 

The ABC asked for further evidence from a medical practitioner with a minimum Bachelor of Medicine/Bachelor of Surgery (MBBS) qualification, claiming a naturopath did not fall within the enterprise agreement’s definition of a registered health practitioner.

Diaz says it’s not unreasonable for an employer to request a medical certificate from a doctor specifically. After all, employers are entitled to ask for further information on an employee’s medical prognosis. 

The employee later cited medical certificates from two independent GPs in her adverse action claim. One claimed the employee has a “chronic health condition” and that she “developed septicaemia while wearing a mask at work”. 

In response the ABC says it “does not know and cannot admit that Lyme disease is a disability” within the meaning of the Fair Work Act.

The employee claims the ABC breached s351 of the Fair Work Act by taking adverse action against her due to her “physical disability”. 

However, Diaz points out an important caveat for employers to keep in mind. While the Fair Work Act makes it unlawful to discriminate on the basis of disability, that protection does not apply if the action is not unlawful under the relevant anti-discrimination law. In some cases, state or territory anti-discrimination legislation includes caveats for employers, such as when it comes to workplace health and safety. 

In this particular case, the action falls under the Victorian Equal Opportunity Act 2010. The Act does not deem an action to be discriminatory on the basis of disability or physical features if the action is reasonably necessary to protect the health and safety of any person.

The basis for the ABC’s argument for not meeting the employee’s accommodation requirements was that a face shield would not adequately protect other employees.

Diaz says considering the nature of the employee’s role – someone who is working close to other people’s faces – it’s possible that the ABC considered that she couldn’t complete it safely without following its OHS guidelines.

Where OHS meets state regulations

In Victoria, where the employee lives and works, masks were mandated in July last year. The employee claimed that workplaces shouldn’t tell employees they can’t wear a face shield as an alternative to a mask because, she says, the Victorian health department considered face shields an acceptable alternative to masks at the time. The advice from the Victorian government has since changed. 

Diaz, however, says it’s not unusual for an employer to implement OH&S demands that are stricter than government guidelines.

“Employers need to conduct their own risk assessments to understand the requirements of different roles which might mean that additional PPE is necessary above and beyond the government’s requirements.”

It’s possible that if the employee was in a role that didn’t require her to lean over other employees, the face shield may have been an adequate alternative, says Diaz.

According to Workplace Express, the ABC attempted to meet with the employee to discuss how to best accommodate her needs but claims the employee cancelled this meeting. 

“When employees aren’t willing to engage in discussions about their demands not to comply with directions about health and safety, it might not leave the employer with many options,” says Diaz.

Even though the employer will ultimately assess whether it considers an adjustment is reasonable, Diaz says if an employee does come forward seeking accommodations for a disability then ideally the employer and employee would work together to arrive at an acceptable outcome. 

“It’s completely reasonable for an employee to put forward an alternative, but both parties have to take part in the discussion.”

When asked to consider an accommodation for an employee’s disability, Diaz suggests employers take the time to do their research.

“You need to consider any evidence that’s been provided and if you do need more information, by all means ask for it.

“And then you need to consider not just how it affects the employee and the workplace, but also any obligations around health and safety, or any public health orders that might be relevant.”

The case was heard by the Federal Court last week and has been referred to mediation.