By Fizzah Usama
It’s become clear that coronavirus is not going away anytime soon and that as individuals and businesses, we will need to remain vigilant to protect the health and safety of ourselves and our people. We’ve had may clients contact our Telephone Advisory Service, asking a variety of questions related to COVID-19, Workplace Health & Safety (WHS) and personal protective equipment (PPE) in the workplace – they want to clarify their rights and obligations as employers. In this blog, our Workplace Relations Consultant Fizzah Usama provides her advice on this hot topic.
The Australian Workplace Health & Safety legislative framework imposes an obligation on all employers to ensure the health and safety of their workers so far as is reasonably practicable. WHS legislation directs a person conducting a business or undertaking (PCBU) to undertake a due diligence process that involves assessing health and safety risks at the workplace and implementing controls and measures to remove or reduce risks to the extent that the employer is able.
Traditionally, the measures have been targeted at reducing risks of physical injury in activities, for example, eliminating trip hazards, however, a PCBU’s obligation extends beyond the physical aspects of the workplace and also requires an assessment of psychological harm and possible risks associated with the current COVID-19 pandemic.
2020 has witnessed an unprecedented expansion in the scope of risk assessment for all businesses to reduce or eliminate the spread of transferable diseases in the workplace. Not only are employers required to undertake this assessment, but in many cases, additional direct responsibilities have been imposed by many States which carry substantial risk of penalties for non-compliance.
That being said, many employers are challenged by the nature and scope of measures which need to be undertaken and what’s considered to be reasonable. So, how should PCBU’s approach this situation? This will vary depending on the type of industry, workers’ level of interaction with the public, the size and profitability of the enterprise amongst other factors. While it may be reasonable to expect a large chain of supermarkets to install physical barriers, as an example, it may not be feasible for a local corner store to afford the same protection for its workers.
PCBUs need to carry out an extensive risk assessment of their workplace and find out what is necessary to prevent the spread of the virus, which should involve a reasonable engagement and consultation process with employees to obtain their opinion on what’s needed to achieve and maintain a safe workplace.
Every workplace is different, and there are a few questions you as an employer need to consider:
- Have appropriate hand sanitisation facilities been put into place?
- Does the business engage directly with the public? If so, what sanitation facilities are provided to the public?
- Do you assess customers/clients’ wellbeing prior to entry?
- Do you record customers/clients’ presence in the workplace?
- Is there a need to erect a physical barrier in the workplace?
- Should face masks be worn at work?
- Can you alter employees start and finish times to prevent time spent on public transport at peak periods?
- Is it reasonably practicable for an employee to work from home?
- What additional (if any) cleaning and hygiene requirements should be put in place, especially where employees share a workstation or items such as phones and computers)?
- Does the company have up-to-date policies and procedures concerning notification of illness etc.?
One of the more challenging questions raised at this time is the ability for employers to mandate the use of face masks and other forms of PPE.
Where a risk assessment has been conducted, and a face mask or other forms of PPE is considered necessary in the circumstances, an employer may provide a reasonable direction for an employee to use a face mask or other forms of PPE while at the workplace or in the performance of their duties. Failure to comply with any reasonable direction may result in disciplinary procedures.
Having said that, it is important that the direction be reasonable in the circumstances and as such, any employee who is able to establish a reasonable explanation as to why they cannot comply with the direction should be assessed and considered further. For example, an employee may be medically prevented from wearing a face mask.
We suspect there will be a minimal number of cases, and that if and when these incidents occur, you as an employer should request a medical certificate and consider what, if any, additional steps and measures you can take to further minimise risk of harm to that employee such as altering their duties which limits their direct engagement with the public.
Despite these general obligations, employers must also adhere to the overarching State-specific guidelines from Departments of Health regulating the use of PPE in workplaces.
In Victoria, for example, from 11:59 PM on Sunday 2 August 2020, wearing face masks in public became a legal requirement, and businesses are required to ensure that their workers wear a face covering while at work unless a lawful exception applies.
Under the Victorian Stage 4 ‘Stay at Home’ restrictions only ‘Permitted Work Premises’ are allowed to conduct on-site operations and must have completed a COVIDSafe Plan or high-risk COVIDSafe Plan to continue operations. These plans must indicate the level of face-covering or PPE required for the workforce.
In NSW, PCBUs are also expected to provide PPE to workers including those contractors who do not have appropriate PPE.
We strongly recommend businesses to take the time to counsel workers who are not adhering to directions issued regarding the use of PPE, and to ensure that they are compliant with all relevant public health regulations. In cases where no justifiable reason or explanation is offered by a worker, advice should be sought and considered before taking appropriate disciplinary action to avoid risks.
We appreciate that the current pandemic is creating many challenges for businesses, and obligations upon employers are changing frequently. Please do not hesitate to contact us if we can assist your business in navigating the regulatory framework during this difficult time. HR Assured is here to help your business.
Fizzah Usama is our Workplace Relations Consultant at HR Assured and FCB Group (our parent company). She advises and supports our clients with any workplace issues via the company’s Telephone Advisory Service.