Last week a Malaysian student of Chinese descent returned to her rented home in Perth’s southern suburbs after visiting family in Malaysia for a few weeks. Upon arriving home, she found the locks had been changed and a handwritten sign was on the door, notifying her she was no longer welcome in the house given the coronavirus “emergency”.

Unfortunately, this is not the only instance of increased paranoia and discrimination against people of Chinese background (or perceived Chinese background):

  • there are widespread reports of a decrease in business at stores with a connection to China (in particular, Chinese restaurants), and increased verbal and online racial vilification;
  • Australia’s Chief Medical Officer Brendan Murphy has stated his increased concern over stories of unlawful and unwarranted discrimination;
  • Queensland Health was forced to publicly clarify that an online statement, purportedly from them, which warned people to stay away from areas in Brisbane with high Chinese populations, was false.

While there is no doubt the coronavirus is a serious medical issue, and appropriate safeguards need to be put in place, unreasonable discriminatory behaviour in employment, education, accommodation and the provision of goods or services may be unlawful even if the discrimination arises from a genuinely held fear about the virus.

When it comes to employment, under Australia’s laws, both employers and employees are obliged to take steps to ensure a safe place of work. In practice, we are seeing employers trying to meet this obligation by placing restrictions on employees returning from certain destinations and restricting overseas travel for work purposes. Employees are being asked to self-report any symptoms and take precautions if they have travelled to certain destinations, such as working from home (where possible) for a quarantine period, and being extra vigilant about their personal hygiene. Such directions from an employer, provided they are reasonable and issued to all relevant employees, and not just those of a particular race or ethnicity, are likely to be lawful.

For example, if the direction to work from home is only issued to people of Asian descent, while their Caucasian colleagues are free to attend work, this will likely be unlawful. In contrast, a direction to all staff who are known to have travelled to China within a certain period, regardless of their race, is unlikely to be discriminatory.

In considering what can be done to protect their workforce, employers should have regard to the various fact sheets issued by the Australian Department of Health. As of 14 February 2020, the Department is recommending the following people should be isolated:

  • If you have left, or transited through, mainland China in the last 14 days you must isolate yourself for 14 days from the date of leaving mainland China.
  • If you have been in close contact with a proven case of coronavirus, you must isolate yourself for 14 days from the date of last contact with the confirmed case.

While employers may consider additional precautions, these must be no more than what is reasonably necessary for their particular circumstances to ensure a safe work environment.

Further, to date we are seeing instances of racial discrimination related to the coronavirus making headlines. However, the coronavirus is very likely to be an attribute that is protected under various state and federal disability discrimination laws. Under the Disability Discrimination Act 1992 (Cth), for example, “disability” is defined to include “the presence in the body of organisms causing disease or illness” and includes a disability that is imputed to a person. Therefore, it is not necessary for someone to even have the coronavirus for them to be protected under this Act. This means, if an employer discriminates against an employee because they think the employee has the coronavirus, that behaviour may be unlawful. Similarly, the Malaysian student in Perth may well have a strong basis to argue she was denied accommodation because her landlord imputed the virus to her which is a breach of the Equal Opportunity Act 1984 (WA).

Steps to prevent the coronavirus are likely to remain in place in the short term, with the Australian Government announcing an extension of the travel ban on non-citizens coming from mainland China to 22 February 2020. While all employers and businesses should continue to put in place appropriate systems and preventive measures, they should also be mindful of not breaching anti-discrimination and vilification laws.

If further advice is needed on your organisation’s legal rights and obligations in dealing with coronavirus and its impact, please contact us.

 

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