Is It Legal To Skip Work To Avoid Bushfire Smoke?

Australians across the eastern states have been choking their way through some of the worst air pollution on record. If you regularly commute to the city, this obviously isn’t great for your lungs. But is it legal to refuse to come into work due to health concerns? Let’s take a look.

NSW has been facing some of the worst bushfires ever recorded but a new issue has arisen to further deteriorate the situation ⁠— the arrival of bushfire smoke threatening the state’s reputation for clean, breathable air.

Consecutive days of poor air quality have cause those with respiratory issues further problems, made the rest of us feel sick and have just generally contributed to a sense of collective misery.

Surely, given the situation, it’s a good excuse to take the day off work like we would during other freak weather events. We looked into the law to see whether it’s something you can legally pull off as climate disasters like this threaten to further disrupt our future.

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With Sydney, parts of NSW and Canberra more recently experiencing the worst air pollution in Australia’s history, Unions NSW took to Twitter in December 2019 to advise workers to work from home or take the day off where possible. But with the hazardous air quality being unprecedented, is it just as simple as asking your employer for the rest of the day off?

Sharmilla Bargon, head of the employment practice at Redfern Legal Centre, told Lifehacker Australia what the law in NSW and federally actually says you can do if the poor air quality’s got you feeling under the weather.

“If an employee is sick then they are sick, it doesn’t matter the reason,” Sharmilla says.

“However, every workplace has policies regarding doctor’s certificates as proof and an employee should check their employer’s policy on this. If someone is genuinely sick then they shouldn’t be at work and they shouldn’t be punished for that.”

But while everyone is probably aware of their employer’s sick leave, we start to wade into uncharted waters when it comes to workplace safety due to the smoke. Employers need to take steps to ensure the workplace is safe and with the bushfire smoke affecting major cities, a question remains whether employees working outside in the hazardous air or if smoke infiltrating office air conditioning systems applies to that legislation.

According to NSW’s Work Health and Safety Act 2011 No 10, an employer must supply “the provision and maintenance of a work environment without risks to health and safety” where practical.

If on these days you have a flexible working situation, you could ask to work from home or ask your employer to provide you with P2 masks, which have been found to provide protection from the smoke when fitted properly.

Employees concerned about the toll on their health, like asthma sufferers or others with health conditions, with the poor air quality might be able to ask their employers for leniency but at the end of the day, it’s still the employer’s call based on their needs.

As the conditions continue over the weeks to come, we’ll have to wait and see if the smokey haze remains the new norm for the foreseeable future and how workplaces adapt to it.

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