Employers may be already aware of their expansive list of duties owed to employees, particularly with respect to workers’ health and safety. However, with the restrictions slowly lifting on COVID-19, it is important to not become complacent with your obligations to take care of the health, safety and welfare of the employees.

Rather than focus on the general obligations owed to an employee, this article seeks to outline some risk management procedures to ensure compliance with existing legislation, in a society that is much more susceptible to a health outbreak.

Employee’s General Health and Wellbeing

COVID-19 is currently affecting everyone, and every workplace, differently. Some people are thriving in an isolated environment whilst others are craving human-to-human interaction. Many workplaces have closed or come to a stand still, whereas some are thriving.

It is a requirement under Australia’s Work Health and Safety legislation, that an employer must eliminate or minimise the risk to psychological health arising from the work carried out by the business. When implementing measures to assist employees with managing their return to work back from isolated life, it is important to consult staff and find out what will best support their needs. The psychological risks presented in a workplace are just as important to consider as the physical risks. In this regard, it is important to maintain psychological risk assessments and treat these employee concerns as seriously as physical risks.

Upon returning to a workplace, employees may be concerned with a lack of personal protective equipment (‘PPE’), sanitisation procedures, workplace violence due to heighten emotions from customers and stressed employees, increased workload and lack of business continuity planning.

To manage some of the aforementioned concerns, it is important to stay up to date with information distributed by reliable resources such as the Federal and South Australian Department of Health, Safe Work Australia, and Federal and South Australian Governments. Beyond Blue and the Australia Psychological Society also have a variety of information sheets and graphics that can be distributed by workplace handouts or mailing lists to employees. It is also beneficial to maintain open communication with employees about their concerns and support reasonable ideas they may have regarding psychological risks.

Working from Home

Working from home (WFH) arrangements may be coming to an end, or for some businesses, may continue to be utilised by employees. It is important for employers to understand that, irrespective of whether their employees are at the workplace or are WFH, their obligations surrounding workers’ health and safety continue to exist.

As suggested by Safe Work Australia, some tips for employers monitoring WFH arrangements are as follows;

  • Promote office health and safety by reminding staff of how an office should be set up, and stretches for office workers to undertaken to ensure they do not become stiff, sore or strain their back and neck muscles through improper posture.
  • Provide staff with infographics surrounding the aforementioned stretches and posture guides and possible office equipment from the workplace, such as an appropriate office chair or footrest.
  • It may be beneficial to require written/formal correspondence about your expectations and confirmation that staff are practicing appropriate health and safety whilst at home.
  • Ensure open communication with staff surrounding any concerns they may from working from home and provide reminders about mental health support phone numbers or employee assistance programs that they may have access to.

Can an Employee Refuse to Return to Work?

Where there is a reasonable concern that a worker will be exposed to a serious risk to their health and safety, employees may have the right to refuse to carry out or stop unsafe work. As mentioned throughout this article, communication with employees about their concerns is, and will be on an ongoing basis, vital to ensuring a harmonious workplace upon returning to work.

It is important to note that an employer cannot discriminate or adversely affect the employment or conditions of employment of the employee for raising workplace health and safety concerns, or refusing to come to work because of perceived risk in returning to the workplace. It will be issues such as this that we urge you to consult your specialist employment lawyer.

Vulnerable Workers

A “Vulnerable Worker” is currently defined, by Safe Work Australia and the Department of Health as someone who is;

  • An Aboriginal and/or Torres Strait Islander aged 50 years or older with one or more chronic medical conditions;
  • Aged 65 years or older with one or more chronic medical conditions;
  • Aged 70 years or older; and
  • Immune compromised.

It has been stressed by the Australian Health Protection Principal Committee that a risk assessment should be undertaken for vulnerable workers employed by the employer. These identified risks should be assessed and mitigated regarding the characteristics of the employee, the workplace and the work undertaken.

COVID-19 and the affects it may have on vulnerable workers (including death or serious illness), mean that COVID-19 is highly risky and harmful to vulnerable workers. For this reason, an employer must consider all control measures, including requiring redeployment of the vulnerable employee to a different role within the workplace, should other additional measures not be practical in their current role. This may involve moving a vulnerable worker who usually words at the front of the business (for example, cash register attendant) to role with less/minimal human contact.

An employer however is unable to require a vulnerable worker to work from home without first identifying, assessing, and attempting to manage reasonably practicable adjustments to the current workplace. Where these steps do not take place, and the vulnerable worker is directed to take leave or work from home, it may amount to discrimination against that worker based on the nature of their “vulnerability”. It is important to note that any entitlements under their employment contract or relevant award must be open and accessible to the employee, and in this regard, we strongly urge you to seek advice from your specialist employment lawyer to manage risks  associated with these issues.

When adjusting, redeploying or making directions regarding vulnerable workers, it is beneficial to conduct a vigorous risk assessment as outlined above. When conducting this risk assessment, it is important to keep a written record of the analysis and any conversations engaged in with the vulnerable worker. Vulnerable workers are generally aware of their limitations and how they may be best able to manage their risks, so it may be important to consult them as to whether they have any suggestions on steps they personally can take. Before making directions based on a risk assessment, it is always advised that the employer get in contact with their Human Resource Advisor, or contact Hallett Law for assistance.

Next Steps

In terms of physical and psychological Workers’ Health and Safety, it is important for risk assessments and management techniques to be undertaken by the employer. For more information about risk assessments and risk management techniques, please do not hesitate to seek further information from Safe Work Australia and their specialised COVID-19 information packs, or contact Kathryn Adams at kathryn@hallettlaw.com.au or Bianca Muller at bianca@hallettlaw.com.au.

Information taken mostly/entirely from;

We are here to help you through this difficult time. We are staying as up to date as possible with the ever-changing situation and we will do our best to ensure that your business functions as effectively and as efficiently as possible.

Please continue to check our website and Facebook account for regularly updates.

Prepared by Bianca Muller, Hallett Law Barossa.