Australia

03 Mar 2021
What risk mitigation efforts should the prudent employer take before employees return to the workplace?

Employers (known as ‘persons conducting a business or undertaking’) have duties relating to the health and safety of workers under work health and safety (WHS) legislation.

Under WHS legislation the primary duty is to ensure, so far as reasonably practicable, the health and safety of workers and that the health and safety of other persons (including clients, customers and other visitors to the workplace) is not put at risk from the conduct of the business or undertaking.

In order to meet this primary duty, employers are required to:

  • eliminate risks to health and safety, so far as is reasonably practicable; and 
  • where it is not possible to eliminate, minimise risks to health and safety, so far as is reasonably practicable. 

Therefore, employers are required to manage COVID-19 risks just like any other health and safety risk – i.e. they must take all reasonably practicable steps to control the spread of COVID-19 within their workplace and arising from their business activities so far as is reasonably practicable. 

Employers need to adopt a risk management approach in respect to COVID-19 risks, based on data and currently available information about COVID-19 and ways to control the risks so far as reasonably practicable. 

The Australian National Cabinet has agreed on ten National COVID-19 Safe Workplace Principles which include, amongst others, that:

“4. As COVID-19 restrictions are gradually relaxed, businesses, workers and other duty holders must work together to adapt and promote safe work practices, consistent with advice from health authorities, to ensure their workplaces are ready for the social distancing and exemplary hygiene measures that will be an important part of the transition.

5. Businesses and workers must actively control against the transmission of COVID-19 while at work, consistent with the latest advice from the Australian Health Protection Principal Committee (AHPPC), including considering the application of a hierarchy of appropriate controls where relevant.”

The full text of the Principles can be found here.

In addition, the Australian Government has released the ‘3 Step Framework for a Covid0Safe Australia’.

Safe Work Australia has an information hub which contains a range checklists, guidance material and industry specific information which can be found here.

The States and Territories have also issued government directions which also need to be considered when considering risk mitigation. These can be found by following the links found here.

In Victoria under current Stage 4 restrictions, all employers permitted to operate (except where there are fewer than 5 workers in a workplace) must implement and adhere to a COVID Safe Plan as set out in the ‘Workplace Directions No 2’ issued pursuant to the Public Health and Wellbeing Act 2008 (Workplace Directions). The plan should include guidance on appropriate PPE, steps to mitigate the introduction of COVID into the workplace and a COVID outbreak response plan, amongst other things. Employers must also comply with the requirements for recording keeping, density quotients for shared spaces and publicly accessible areas, cleaning and responding to suspected cases in a work premises set out in the Workplace Directions. 

Businesses in high risk industries (Additional Obligation Industries) such as construction, retail and meat works (amongst others) must implement a High Risk COVID Safe Plan (in addition to complying with requirements relating to workforce capacity and PPE requirements, amongst others). These industries must consult with affected workers and WHS representatives to identify risks, determine control measures and be involved in the decision-making process in respect of WHS procedures and the adequacy of facilities. Records must be kept by employers demonstrating compliance with the Workplace Directions.

 
Who should be involved in the decisions to return to the workplace?

Under the WHS legislation there is a specific duty that requires businesses to consult with workers when identifying hazards, assessing risks and deciding on measures to control risks.

As noted above, the National COVID-19 Safe Workplace Principles contemplate that businesses and workers must work together to adapt and promote safe work practices, consistent with advice from health authorities, to ensure their workplaces are ready for the social distancing and hygiene measures.

 
What can the prudent employer do to ensure physical distancing in terms of the work space?

The Australian Government recommends that 1.5 metre physical distancing between workers, customers and visitors should be maintained at all times, in addition to ensuring that there is 4 square metres of space per person. However, there may be different numbers of persons that can gather and/or density requirements in the various States and Territories which can be checked here

The steps that will be required will depend on the nature of the workplace and the tasks and will be part of the risk assessment carried out. 

The information published by Safe Work Australia (including a checklist on physical distancing) contains the following suggestions, amongst others:

  • Calculate the area of the enclosed space (length multiplied by width in metres) and divide by 4. This will provide the maximum number of people that should be in the space at any one time.  
  • Consider and make adjustments to the layout of the workplace and workflows to enable workers to keep at least 1.5 metres apart to continue performing their duties.
  • Limit the number of people in the work space by facilitating work from home, spacing out the furniture, and splitting working shifts.
  • Postpone or cancel non-essential gatherings, meetings or training or use non face-to-face options to conduct them (e.g. video conferencing).
  • Place signage about physical distancing around the workplace and use electronic computer reminders or ‘floor monitors’.
  • Direct workers to keep 1.5 metres of distance between them in accordance with general health advice.

It will also be important to check what sub tenants/contractors/outsourced services are doing and consult with them about measures to eliminate or minimise the risks of exposure to COVID-19 so far as is reasonably practicable.

Practical tips:

  • Consider industry specific guidance on modifications to the workplace available from Safe Work Australia, regulatory authorities and various industry bodies.
  • Use signage to develop flow of travel through the office.
  • Inform and train workers, as necessary, in the use of the introduced risk control measures.

The current Workplace Directions in place in Victoria include a number of obligations to protect workers.  These include, amongst other requirements, signagein publicly accessible spaces advising of the maximum number of people that can be present in that space at any given time.

 
What can the prudent employer do to ensure physical distancing in temporal terms?

Maintaining physical distancing may also require other changes:

  • Minimising the number of people within an area at any time;
  • Limiting access to the workplace or parts of the workplace to only essential workers;
  • Staggering start, finish and break times where appropriate;
  • Moving work tasks to different areas of the workplace or off-site if possible;
  • If possible, separating workers into dedicated teams and have them work the same shift or work in a particular area and consider whether these dedicated teams can have access to their own meal areas or break facilities; and
  • Ensuring each worker has their own equipment or tools.

Changing hours of work to stagger arrival at the workplace or creating new teams or different shift patterns may require changes to the employees’ terms and conditions. At present many Modern Awards (which apply to employees in a range of industries and occupations) allow employers to make changes to employees’ working arrangements by unilateral direction. These provisions will cease to have effect at the end of June 2020 unless renewed by the Fair Work Commission. In the long term, the best way to proceed with this is to obtain each employee’s express consent to the change. 

Practical tips:

  • Determine changes to working hours that may be required; and
  • Determine the groups of staff and schedule groups to work together.
 
What protections should the prudent employer consider implementing, in addition to physical distancing?

In addition to checklists on physical distancing and guidance on preventing the spread of COVID-19, SafeWork Australia has produced checklists relating to the workplace; health, hygiene and facilities; and cleaning and disinfecting. The Safe Work Australia guidance includes the following:

  • You must direct your workers and visitors to the workplace to practice good hygiene while at the workplace. Good hygiene requires everyone to wash their hands regularly with soap and water for at least 20 seconds before and after eating, after coughing or sneezing, after going to the toilet, when changing tasks and after touching potentially contaminated surfaces.
  • Workplaces must be cleaned at least daily. Cleaning with detergent and water is usually sufficient. Once clean, surfaces can be disinfected. When and how often your workplace should be disinfected will depend on the likelihood of contaminated material being present. You should prioritise cleaning and disinfecting surfaces that many people touch.
  • Setting your system to allow more air circulation in common areas and limiting or not using recirculated air and increasing outside air intake, if possible, may help minimise the risk of COVID-19 spreading in your workplace.

Whether employees should be provided with PPE will depend on the nature of the workplace and will be recommended as part of the risk assessment.  

SafeWork Australia has recently released a checklist on the types and uses of face masks and notes that the “Australian Government Department of Health does not generally recommend the wearing of face masks in the community. However, there may be occasions when it is recommended that the general public wear face masks…”.  In Victoria, the Chief Health Officer recommends that adults living in areas under Stage 3 restrictions wear face masks when outside the home if it is difficult to keep 1.5 metre apart from other people. While PPE alone will not protect workers, employers must implement a range of controls to limit the spread of COVID-19 including hygiene measures, physical distancing and cleaning/disinfecting.

Perspex screens (also known as sneeze guards) can be considered at workplaces where workers are in close proximity to each other for long periods. For example, a perspex screen could be considered where two workers work side by side or back to back for a shift.

Under the current Workplace Directions in place in Victoria, employers are required to take reasonable steps to ensure workers wear face coverings at all times while working onsite (subject to certain exemptions). 

The Workplace Directions also include cleaning requirements for twice daily cleaning of frequently touched surfaces, cleaning of visibly soiled surfaces and cleaning between events. Cleaning must be done with disinfectant containing anti-viral properties.

Workers must notify their employer as soon as practicable if they test positive for COVID-19. In turn the employer must notify WorkSafe Victoria (the safety regulator), undertake a risk assessment and comprehensively clean the workplace. The employer must consult with the diagnosed worker to determine any close contacts.      

There are also record keeping requirements under the Workplace Directions. These require a record of all workers and visitors attending a workplace for more than 15 minutes.  The records must include the person’s name, phone number, date of attendance and areas of the workplace they attended.

In Victoria, businesses in high risk industries have additional obligations, including a PPE training plan (which must be accessible to multilingual workers), a publicly displayed cleaning log (including cleaning between shifts), employees must declare at the start of a shift that they are free of COVID-19 symptoms and have not been in contact with a confirmed case nor have they been directed to self-isolate. Workers must be prohibited from attending work where they are awaiting test results for COVID-19 or while they have symptoms.

There are further requirements specific to certain industries. For example, in meat works facilities (including poultry and seafood) a surgical facemask and face shield must be worn where reasonably practicable. 

Industries subject to additional obligations are also subject to workforce restrictions. For example, on small residential builds there must be no more than 5 workers onsite plus a supervisor. Workers specifically dedicated to oversight of COVID-Safe procedures are not counted in this number.

 
How can an employer screen its employees, including temperature testing, COVID-19 testing and questioning? 

In relation to temperature testing, Safe Work Australia’s general guidance says:

“…[y]ou may want to monitor the health of your workers through administering temperature checks, as a preventative measure in managing a COVID-19 outbreak in your workplace. There may be times where this is required or reasonable, for example, where workers live together in accommodation such as FIFO or agricultural workers or in workplaces where vulnerable people are present, such as hospitals and aged care facilities.  

However, for many workplaces, there may be little benefit in conducting temperature checks on workers or others. This is because temperature checks will not tell you whether a person has COVID-19. It will only identify symptoms. It is possible that a person may be asymptomatic or be on medication that reduces their temperature. It is also possible that the person may have a temperature for another reason unrelated to COVID-19.”

Following a risk assessment, if temperature testing is being considered as a risk control measure, businesses should consult with workers and provide information about the process.

COVID-19 related questioning of workers and visitors (including by way of telephone, apps and non-face to face contact) prior to access to a workplace can also be utilised by businesses as part of their risk control measures. The privacy of that information, its collection, storage and use must be managed.

In Victoria under current Stage 4 restrictions for industries with ‘additional obligations’, daily temperature checks of workers must be done and if at least 37.5 degrees C, the employer must direct the employee to go home, self-isolate and get tested.

For all open industries in Victoria, workers exhibiting COVID-19 symptoms must not be required by their employer to work.  Workers must be told by an employer to self-isolate on becoming aware that they are a suspected case of COVID-19 and advise the worker they must be tested. The employer must then clean the workplace and inform all employees to be vigilant as to the onset of symptoms and to get tested. If three or more workers contract COVID-19 in a workplace within a 5 day period, the employer must undertake a risk assessment to determine whether the workplace should be shutdown.

 
What are the requirements regarding travel – either to or from the office or business travel?

Guidance from State governments in Australia suggests that employees returning to work should avoid the use of public transport wherever possible. 

If an employee has no alternative but to use public transport then consideration should be given to whether staggering office hours so that the employee can avoid the busiest times is reasonably practicable. 

Travel within Australia is subject to certain border closures affecting particular States, and employment related travel may not be undertaken at present where it involves crossing the border of a sequestered State.

Practical tips:

  • Consider methods of travel to the office;
  • Encourage use of virtual meetings to limit business travel;
  • Establish protocol for determining business travel.

The Victorian restrictions require workers to work at only one premise of the employer (unless not reasonably practicable).

For the construction industry in Victoria, guidance by Business Victoria states all onsite workers are:

  • Prohibited from car-pooling to and from work;
  • Required to inform their employer if they share accommodation with anyone working at another high-risk workplace; and
  • Required to limit movement between multiple sites and observe enhanced PPE and hygiene measures if working between sites.

Supervisors can move between sites and specialist contractors can move between up to three sites per week (subject to enhanced PPE and hygiene measures).

 
How does the prudent employer decide which employees should return to the workplace?

In planning for return to the workplace, businesses should consult with workers and consider vulnerable workers.  Other considerations include:

  • How access to the workplace will be managed and who will be responsible for its monitoring? 
  • How will social distancing measures be addressed in offices, working spaces, meeting rooms, walkways, lifts, tea rooms, kitchens, toilets, etc.?
  • How will tasks that challenge physical distancing be managed?
  • What kind of cleaning protocols will be used? Who will do the cleaning? If plant/equipment is shared, how will it be cleaned and by whom? What about high-touch items?
  • What kind of information, instruction and training will be provided to workers on managing the risk of exposure to COVID-19; protocols for workplace access, physical distancing, workplace cleaning, worker hygiene and health monitoring?
  • How to effectively consult and communicate prior to and during the return phase if there are different start/finish times, rotating teams and others working from home?
  • How to manage whether there is a need for refresher training on work tasks/equipment or information to people returning following stand-downs/absence from work (particularly where those persons may have been involved doing other work in the meantime and may need to be re-trained)?
  • How to support good mental health where there may be increased general anxiety connected with COVID-19 both due to work changes (e.g. changed work conditions) and change in personal circumstances?
  • In respect of the Stage 4 restrictions applying to industries across metropolitan Melbourne (Victoria), all workers (with limited exceptions for public servants) must carry a permit issued to them by an employer in an open industry. The decision must be based on criteria under the Permitted Worker Permit Scheme and Access to Onsite Childcare/Kindergarten Permit Scheme Directions, which include the industry and service being permitted to operate and the worker being unable to work from home.
 
What if an employee refuses to return to the workplace?

An employer can insist on compliance with a direction to an employee that is lawful and reasonable in connection with the employment. Where an employer has addressed the risks posed by COVID-19 and eliminated or minimised them so far as is reasonably practicable, including by adopting measures consistent with the National COVID-19 Safe Workplace Principles and the SafeWork Australia recommendations, then that may provide a basis for compelling an employee to  comply with the employer’s direction to return to the workplace subject to specific vulnerabilities to which the employee may be subject. Such vulnerabilities may necessitate the adoption of special arrangements for that employee to address WHS obligations or the employer’s duties under disability discrimination laws.

Carrying out proper consultation should bring any special issues to the forefront which can be addressed in the implementation of the employer’s return to the workplace plans. But where the employer is presented with a refusal to return to the workplace by an individual employee it is best that specific advice is sought before a reflexive response of disciplinary action or dismissal is undertaken.

 
What other considerations should the prudent employer be thinking about at this time?

Employers may find themselves with many more requests for flexible working arrangements made under the Fair Work Act. Such requests may legally be made by employees who have family responsibilities for children below school age, or who have a disability, or who are experiencing family or domestic violence or who care for a person experiencing such violence. The employer can only refuse such requests where there is a reasonable business basis for doing so.

Employers may also find that they are facing more grievances from employees in relation to directions to change the employee’s hours and circumstances of work made under the Fair Work Act in connection with the Commonwealth Government’s “JobKeeper” scheme. 

The merits of such applications and grievances will fall to be determined by principles that do not necessarily align with those that would have applied to before the advent of the pandemic. Obtaining specific advice at an early stage is recommended.

 
What are the safety and employment issues for consideration regarding the vaccines?

What are the safety and employment issues for consideration regarding the vaccines?

We set out below key questions and answers regarding the safety and employment issues for consideration regarding the vaccines.These issues primarily arise under work health and safety laws which (for most organisations) are state laws.

As this is an area which may be subject to legislative and regulatory change at short notice, it is critical that organisations continue to review and apply the guidance provided by Government (including public health orders, advice from the AHPPC and guidance from Safe Work Australia, the Fair Work Ombudsman, and state and territory work health and safety regulators). 

It is currently anticipated that most people in Australia will be vaccinated sometime between now and early 2022.  However, Australian employers are being advised that a COVID-19 risk is likely to remain for several years to come, and that there will be a version of ongoing vaccination requirements, travel restrictions, and workplace restrictions that will continue to apply throughout that period.

What is the Government stance regarding vaccination?

The Federal Government’s stated policy is that state and territory governments may introduce public health orders making COVID-19 vaccination a requirement in order for workers to enter certain types of workplaces.

At the time of publication, there are a small number of state and territory public health orders mandating vaccination for certain workers involved in the quarantine and health service industries.  The Federal Government has also received advice from the AHPCC that all residential aged care workers should be required to be vaccinated.  A list of the current public health orders requiring workers to be vaccinated is available on Safe Work Australia’s website (see here).

Can employers require their workforce to be vaccinated?

A vaccine requirement could be imposed:

  • where legislation or an applicable public health order makes vaccination mandatory for workers in certain industries;  
  • where there is a pre-existing contractual requirement regarding vaccination – this is unlikely to be the case for most businesses; and
  • where a health and safety risk assessment indicates that this requirement is a reasonably practicable measure to minimise the risks of COVID-19 transmission and infection in the workplace.

At the time of publication the guidance from Safe Work Australia (SWA) (see here) and the Fair Work Ombudsman (see here) remains that, for most employers, it is unlikely a requirement for workers to be vaccinated will be reasonably practicable.However based on the following factors, we consider that a requirement for workers to be vaccinated (at least one dose) is likely to be reasonably practicable in an increasing number of workplaces, provided that the requirement includes appropriate health, religious (and potentially other exemptions, such as that the worker is booked in for the vaccine):

  • the outbreak of the Delta variant of coronavirus across Australia and the higher level of infectiousness of the Delta strain, rendering existing control measures less effective;
  • the greater proportion of people who have already received one dose of a vaccine (and the greater current accessibility to the vaccines); and
  • the knowledge about the impact of vaccines on infection and transmission risks (arising from the many millions of doses that have been administered around the world).

The risk assessment must take into account the specific facts of the business and activities. Safe Work Australia has said that when deciding whether it is reasonably practicable to introduce a vaccination requirement in your workplace, the following factors need to be assessed on an ongoing basis:

  • Is the Australian Health Protection Principal Committee recommending COVID-19 vaccinations for all workers in your industry?
  • Will your workers be exposed to the risk of infection as part of their work?
  • Do your workers work with people who would be vulnerable to severe disease if they contract COVID-19?
  • What is the likelihood that COVID-19 could spread in the workplace? For example, some work tasks may require your workers to work in close proximity to each other.
  • Do your workers interact with large numbers of other people in the course of their work that could contribute to a ‘super-spreading’ event if your workers contract COVID-19?
  • What other control measures are available and in place in your workplace? Do those control measures already minimise the risk of infection, so far as is reasonably practicable?
  • Would a requirement to be vaccinated be unlawful in the circumstances? For example, would it discriminate against a class of employees?

What obligations do businesses have under work health and safety law?

Under work health and safety laws, organisations have a primary duty of care to ensure the health and safety of workers (employees and contractors) so far as is reasonably practicable, and to ensure that the health and safety of other persons (eg customers and suppliers), is not put at risk from the conduct of the business or undertaking.  In order to meet this duty of care, organisations must:

  • Undertake a risk assessment of exposure to COVID-19 from their business activities;
  • Consider the available control measures and how they will help to manage the risks of COVID-19, including information regarding the accessibility and efficacy of the vaccines and any risks to health and safety associated with the vaccines;
  • Consult with workers and health and safety representatives about COVID-19 and relevant control measures, including the vaccines; and
  • Determine what control measures are reasonably practicable. 

Obligations under work health and safety law are discussed further the Safe Work Australia Guidance (see here).

How would a vaccination requirement be implemented?

If a risk assessment indicates that a requirement to be vaccinated is reasonably practicable, the requirement may be implemented as a condition of entry to premises within the organisation’s management and control, or as a requirement for workers to be engaged in a certain activity or project.  For example, an organisation commissioning an infrastructure project in a remote area that involves interaction with vulnerable people (traditional owners) could include a vaccination requirement in the construction contract with the builder, which provides that the builder must ensure persons who enter site are vaccinated (with appropriate exemptions based on health and religious grounds, and appropriate practical grounds).

An employer’s ability to impose a vaccination requirement on its individual employees would depend on the contract of employment, including the implied term in every employment contract under which the employee is obliged to comply with the lawful and reasonable directions of an employer that falls within the scope of employment. Further guidance is provided by the Fair Work Ombudsman here.

Would non-compliance with a vaccination requirement be lawful grounds for dismissal?

Where an employee disobeys a requirement properly given under an express or implied term, then he/she may legitimately be the subject of disciplinary action including dismissal. However enforcing compliance with any vaccination requirement would need to be carefully managed, to minimise the prospect of unfair dismissal and / or adverse action claims under the Fair Work Act. 

As an alternative to requiring employees to be vaccinated, can employers strongly recommend that all employees receive the vaccination?

Any recommendations about the need for vaccination should be based on a risk assessment that takes into account the specifics of the workforce (for example, the factors referred to under Can employers require their workforce to be vaccinated?).

SafeWork Australia’s guidance is that employers can encourage workers to get a COVID-19 vaccination if they are able to. SafeWork Australia says this can be done by directing them to the Department of Health website or employers can also develop their own informational material, provided that it meets the conditions outlined in the guidance published by the Therapeutic Goods Administration (TGA) (see here).

The TGA guidance provides that organisations may provide rewards and incentives to people who have been fully vaccinated, however organisations should have regard to the risks arising from an incentivisation or reward program and must ensure that any incentive offered is considered, reasonable and proportionate in order to avoid any confusion regarding the voluntary nature of receiving a vaccination (unless the organisation’s risk assessment supports the introduction of a mandatory vaccination requirement). A disproportionate incentive offered to a worker may create a liability risk in the event the vaccination causes harm to a recipient and the organisation has encouraged the vaccination, or the recipient expressed that they only received the vaccine due to the organisation’s incentive.

Can employers require staff who have not been vaccinated, to continue to work from home until advised otherwise?

If a public health order or an organisation’s risk assessment supports a requirement for staff to be vaccinated in order to attend the workplace, the organisation can require staff to work from home if they are not vaccinated.

Can an employee refuse to attend a workplace if other co-workers are not vaccinated?

Current guidance from Safe Work Australia and the Fair Work Ombudsman is that it is unlikely that an employee could refuse to attend their workplace where a co-worker isn’t vaccinated against coronavirus. This guidance may change if the corona virus risk increases, and vaccination accessibility also increases.

Could employers require employees to provide proof of vaccination or a vaccination certificate?

An employer may request this information, but unless the employer’s risk assessment supports the introduction of a mandatory vaccination requirement, it would not be reasonable to require an employee to provide this information if the employee does not wish to volunteer it.

If the employer’s risk assessment supports the introduction of a mandatory vaccination requirement, the employer may issue a lawful and reasonable direction to employees to provide information about their vaccination status.

Can organisations ask for proof of vaccination for persons entering the business?

Organisations will have a lawful basis for imposing a vaccination requirement on customers and visitors (and requiring proof of vaccination)  where the organisation’s risk assessment concludes this is a reasonably practicable risk control measure. Safe Work Australia has provided a list of factors that should assessed on an ongoing basis when deciding whether a vaccination requirement is a reasonably practicable risk control measure – see Can employers require their workforce to be vaccinated? above.

Can an employer keep records of who has and has not been vaccinated?

Yes, if employees agree to disclose this information. Employers should ensure that confidentiality be maintained over any such record and that there is no unlawful discriminatory action towards vaccinated or unvaccinated employees.

Can employers organise for vaccinations to be given at their worksites?

At the time of publication, the Australian Government has commenced discussions with business leaders regarding the possibility of vaccinations being given at workplaces.  This is currently only an option that is available at limited types of workplaces (such as aged care facilities).

 
What issues arise in introducing Hybrid working?

The issues arising for businesses that have introduced hybrid working since the pandemic began are the same as the issues that arose before the pandemic.  From a work health and safety perspective, this includes managing work health and safety risks to workers while they are working from home, including any psychosocial risks

 
Contact

Jason Noakes
Partner
jason.noakes@nortonrosefulbright.com
+61 2 9330 8021