Victorian employers, are you taking ‘reasonable steps’ to ensure employees wear masks?

By Aron Mazur

Key messages:

• Employers must take reasonable steps to ensure all Victorian employees wear masks when working;
• WorkSafe Victoria recommends training employees on safe use of masks;
• Non-compliant employers can be fined almost $100,000;
• Employers should provide masks to employees if they don’t bring their own;
• Some employees may be exempt, including for health reasons.

For our update on Victorian employers’ options for dealing with stage 4 restrictions, including stand downs, JobKeeper and more, click here.

To find out more about your obligation to report confirmed cases of COVID-19 to WorkSafe Victoria, click here.

From 2 August 2020, all Victorian residents must wear a face mask when outside their home, with limited exceptions. Importantly, for employers who are permitted to operate during stage 4 restrictions announced on 3 August 2020, this includes employees who are working at the employer’s premises.

Employers must now take ‘reasonable steps’ to ensure that employees wear masks when working. Read on for our summary of the new directions, and what actions Victorian employers need to take now.

What do Victorian employers need to do?

Under new Restricted Activity Directions in force until at least 16 August 2020, employers have a positive obligation to take ‘reasonable steps’ to ensure all employees wear a face covering at all times when working at the employer’s premises, unless an exception applies. What counts as a ‘face covering’ has been explained by the Department of Health and Human Services (DHHS).

Employers are only required to ensure that employees wear masks when actually working. It is not the employer’s responsibility to ensure compliance when an employee is on a break, commuting to work, or outside of the employer’s premises.

This direction is in addition to the existing requirement that employers must not permit employees to work from the employer’s premises, unless permitted under the restrictions introduced at
11.59 pm on Wednesday, 5 August 2020 and/or 11.59 pm Friday, 7 August 2020.

What happens if an employer doesn’t comply?

If an employer fails to take reasonable steps to ensure employees wear face masks while working at the workplace, it will contravene the directions and may be fined up to $99,132.

Individual employees may also be fined $200 if they fail to wear a mask without a lawful excuse.

What does ‘reasonable steps’ mean in practice?

If an employee is not wearing a face covering when working, and is not covered by one of the exceptions (outlined below), the employer has a positive obligation to take action.

The Victorian Government recommends that employers encourage their employees to bring their own face covering to work. If an employee brings their own face covering, under the Occupational Health and Safety Act 2004 (Vic) (OHS Act), an employer must ensure that does not present a risk to health and safety. For example, employers should be satisfied that masks are suitable for the work performed, compliant with government advice, and do not create new health risks for employees (for example, by being too tight).

There is a positive obligation for employers to provide a mask if an employee does not wear one. We recommend employers have compliant masks on hand to provide to employees who do not bring their own, and that employees are not required to pay for these masks. Failure to provide spare masks may be seen as not taking reasonable steps to ensure that employees wear masks.

Where face coverings are ordinarily worn at work (for example, welding helmets or dust masks), WorkSafe Victoria requires employers to conduct a risk assessment to ensure that these adequately reduce risk of exposure to COVID-19.

How does this impact our occupational health and safety duties?

To comply with the OHS Act, employers must provide and maintain a safe working environment that is without risks to the health of employees and independent contractors.

The incorrect use of face coverings may increase the risk of COVID-19 and other health risks. Therefore, WorkSafe Victoria recommends that employers provide training and information on:

• when face masks are to be worn;
• how to put on and wear face masks correctly;
• how long face masks can be worn;
• how to remove face masks safely, including changing masks during shifts; and
• how to safely store and wash reusable face masks or dispose of single use masks.

Employers also need to provide appropriate hygiene amenities for employees to safely put on and remove masks, including handwashing facilities or alcohol-based hand sanitiser. Where employers provide reusable masks, they should provide facilities for cleaning the masks.

Remember that under the OHS Act, employers must consult, so far as is reasonably practicable, with employees and OHS representatives (if any) about the impact of wearing masks on their health and safety. Employers should invite employees to raise any concerns or considerations that the employer might need to take into account.

What do I do if employees won’t or can’t wear a mask?

Failure to comply with a lawful and reasonable direction to wear a face mask could be grounds for disciplinary action, up to and including termination of employment. Further, employees have a duty to cooperate with actions taken by their employer to comply with OHS Act. We recommend seeking legal advice in these circumstances.

What are the exceptions?

There are exceptions to the requirement of an employer to ensure the employees wear a face covering at all times. These are listed on the DHHS website.

In this fast-changing landscape, it’s more important than ever to seek legal advice about your workplace’s plan for dealing with COVID-19. Contact us and visit our COVID-19 Resource Centre for more information.