Thinking | 5 June 2020
Back to work and COVID-19 – Part 2: What work health and safety steps must employers take?
By Alison Baker
Welcome to Back to work, our series of articles providing practical guidance on what employers should consider in returning employees to the workplace as COVID-19 restrictions ease. You can read ‘Part 1: How do I decide who returns to the workplace and when?’ here.
This series is of a general nature and does not consider industry-specific advice, such as the unique considerations for aged care or retail employers. For industry-specific information, read Safe Work Australia’s new guidance or contact us to discuss your business. Employers must also consider the applicable State and Territory restrictions that will determine when and to what extent your employees can return to the workplace.
In most States and Territories of Australia, the current government directive is that employees should work from home where possible. However, subject to State or Territory restrictions, employers considering a return to the workplace have flexibility in when and how the return will take place.
What seems certain is that a gradual approach will be necessary for employers to comply with social distancing rules, ‘stay home’ directions and other government directions. So how do employers get people back to work safely while complying with work health and safety (WHS) laws?
What are my general WHS obligations?
Under WHS laws you must ensure, so far as reasonably practicable, the health and safety of workers and others. This includes employees, contractors, volunteers, clients and customers. This means employers must, so far as reasonably practicable:
provide and maintain a work environment where risks to health and safety are eliminated or minimised;
provide adequate facilities (such as bathrooms, tables and chairs) for the welfare of workers; and
monitor the health of workers and conditions at the workplace for the purpose of preventing illness or injury.
What is reasonably practicable depends on all the circumstances, and is assessed objectively rather than on an employer’s subjective views.
What specific measures have been put in place to manage COVID-19?
The Australian National Cabinet has agreed to 10 national COVID-19 safe workplace principles in anticipation of COVID-19 restrictions easing. The principles include that employers must:
consult with workers and their representatives to identify risks;
implement and review control measures to address those risks;
adapt and promote safe work practices, consistent with advice from health authorities to ensure workplaces are ready for social distancing and exemplary hygiene measures;
apply the hierarchy of appropriate controls where relevant to control against the transmission of COVID-19;
be ready to respond immediately, appropriately, effectively and efficiently, and consistent with advice from health authorities, to cases of COVID-19 in the workplace.
The national COVID-19 safe workplace principles are a helpful tool to guide employers on planning their return to the workplace. Although they’re not legally enforceable, they complement existing WHS laws. We recommend ensuring that your return to the workplace aligns with the principles, as courts may refer to them in determining whether an employer discharged their WHS duties during the COVID-19 pandemic.
What do I need to do before returning to the workplace?
Employers should prepare a COVIDSafe plan. The COVIDSafe plan is a planning toolkit developed by the National COVID-19 Coordination Commission to help employers implement and comply with the national COVID-19 safe workplace principles. The plan requires employers to:
Complete a risk assessment
Consult with workers
Maintain good health and hygiene
Stay physically distant
Review industry specific information and changes
Plan for a COVID-19 infection
Identify tasks to get your business up and running
Consider how your business might adapt or temporarily change
The COVIDSafe plan is intended to be continually revised and updated by employers as public health conditions and restrictions change.
In developing your COVIDSafe plan, we recommend referring to the industry-specific information for COVID-19 developed by Safe Work Australia. You should also consider whether your State or Territory WHS authority provides further resources (for example, Safe Work NSW provides a ‘pandemic plan’).
Part of managing your WHS obligations in a COVID-19 environment includes implementing practices that mitigate the risk of employees, clients, customers and contractors being exposed to COVID-19 in the workplace. Measures being considered by employers include temperature checking prior to allowing anyone to enter the workplace, recording contact tracing details of visitors, and providing sanitation products.
Do I have to provide masks, gloves or hand sanitiser? Do I need to move furniture to promote social distancing? What about promoting good hygiene among employees?
Safe Work Australia has published comprehensive advice on practical WHS initiatives that employers should implement. Safe Work Australia also provides industry-specific advice tailored for the challenges faced by employers in complex environments such as aged care, hospitality and manufacturing.
We recommend regularly reviewing Safe Work Australia’s guidance, as it is frequently updated with the latest best-practice approaches to WHS during COVID-19.
Can an employer require that all employees provide medical clearances before they return to the workplace?
Unless the employer has reasonable grounds to believe an employee is ill or injured, it should assume they are healthy and fit to return to work and not require medical clearances.
Employees who have tested positive for COVID-19 can return to the workplace when they have fully recovered and have met the clearance criteria. Whether a person has met clearance criteria depends on the approach in each State or Territory. Some jurisdictions may require a clearance be provided by the public health authority or a medical practitioner. Employers should ask employees to provide confirmation that they have received clearance before returning to the office.
Employees who have been in quarantine (for example if they have returned from travel or been in close contact with a confirmed case) and do not develop symptoms during quarantine will be able to return to work after the 14-day quarantine period. Employers should not request that employees provide a medical clearance in these instances unless symptoms develop.
Can I temperature test employees before I let them enter the workplace?
Employers intending to implement temperature checks as a condition of entering the workplace should first consider:
- Is temperature checking an important way for your business to manage COVID-19 risks?
- Is temperature checking a reasonable measure in the circumstances?
When determining whether temperature checking is a reasonable measure, employers will need to consider the specific context and the risks within its own workplace (for example, whether the industry is a high risk industry such as health or aged care).
Temperature testing involves the collection of information regarding an employee’s health. As health information is classed as ‘sensitive information’ under the Privacy Act 1988 (Cth), strict protections apply.
To collect an employee’s sensitive information:
- an employer needs the employee’s consent (unless an exception applies); and
- the information must be reasonably necessary for, or directly related to, one or more of the organisation’s functions.
One relevant exception from the consent requirement is where it is unreasonable or impracticable for an employer to obtain consent, and the information is necessary to reduce or prevent a serious threat to the life, health or safety of an individual, or to public health and safety.
Given the current COVID-19 environment, employers can likely rely on that exception to temperature check employees who refuse consent. However, it is always preferable that employers obtain consent.
Employers conducting temperature testing will also need to consider what employee information needs to be retained, and then retain only that information in line with confidentiality and privacy requirements.
It is also important for employers to understand the limitations of temperature testing, which include that:
It will not diagnose COVID-19.
It will not identify employees who are asymptomatic.
Employees with COVID-19 may be taking medication that reduces their temperature to an acceptable reading.
Due to its limitations, temperature testing should not be the only WHS measure relied upon by employers. It is important that employers implement other practices that manage good health and hygiene and adhere to physical distancing guidelines.
Are you ready to safely bring employees back to the workplace?
Regardless of how prepared you are to address the WHS risks, make sure you check the applicable State and Territory rules before asking employees to return to work. Always seek advice if you’re not sure of your obligations.
Stay tuned for the next article in our Back to work series, which will summarise the options available to employers (and their limitations) under recent COVID-19 changes to awards and workplace laws.
More information and resources on the impact of COVID-19 on business can be found at our COVID-19 Resource Centre. If you would like assistance in understanding your employment law obligations, contact us to discuss your business.
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