Whilst we are by no means in the clear with respect to COVID-19, Federal and State Governments have confirmed that the raft of expedient measures taken by the majority of Australians, such as social distancing, border closures, home isolation and so forth, has seen an ever decreasing reduction in infection rates to the point that on Monday 11 May, NSW recorded its first day of no new infections since lockdown commenced.
To that end, Government is eager for the economy to “reanimate” and many employers are desperate for their employees to return to work as soon as possible. So, what does the workplace look like after COVID-19 has so drastically changed the industrial landscape? In this client alert, we will be examining the challenges employers face in recalling their employees back to work and the necessary steps they should take to ensure employee and customer safety.
National COVID-19 Safe Workplace Principles and Creating a Safe Workplace
The National Cabinet have agreed upon a set of safe work principles to ensure that all workers, regardless of their occupation or how they are engaged, can enjoy returning to a healthy and safe workplace. These principles are generally concerned with employers, in consultation with employees, conducting an assessment of their unique workplace to identify, understand and quantify risks and to implement and review control measures to address those risks. Depending on the industry, that might include:
- staggering the employees’ return to work;
- staggering employees’ schedules and start/finish times;
- workspace arrangements; and
- health monitoring, cleaning, and hygiene measures.
For example, in many modern office workplaces, including call centres, through the use of more flexible technology, employers have moved to more communal work practices such as open plan workspaces, ‘hot desking’, ‘brainstorming’ rooms and shared recreation facilities. In those communal work environments, an employer might consider creating static workspaces (rather than hot desking) and stagger work schedules so that half the employees work, for example, a fortnight of Mondays, Wednesdays and Fridays while the other half work a fortnight of Tuesdays and Thursdays before swapping (to alleviate congestion in the office and allow for spaces between desks). Note that to keep the groups of employees isolated from each other to reduce the risk of infection, it is important that employers try to ensure that the different rostered employees remain on the sperate rosters so there is little risk of cross-contamination should an employee fall ill.
Employers might also consider temporarily denying access to shared recreation spaces to ensure that employees can abide by the ‘4 square metre rule’ and staggering employee lunch breaks (if taken in a communal break room) to maintain social distancing. With respect to travelling to and from the workplace, employers might encourage employees to commence and/or leave work earlier or later than normal so as to avoid congestion on public transport.
Of course, not all workplaces look the same and specific measures may need to be taken for different jobs. For example, employees who work in a confined workplace and who have more proximate dealings with customers in particular, ought to wear personal protective equipment and operate a regime whereby all employees attend to washing their hands with soap and water for 25 seconds every hour, on the hour.
Nonetheless, whatever the workplace or industry looks like, some constants will apply. For example, implementing and maintaining hygiene standards, attending to proper cleaning protocols and the monitoring of employee health is vital to maintain a safe workplace. If an employee presents for work and appears unwell, has a cough or sore throat or is displaying flu-like symptoms, they should be sent home immediately and directed not to return to work until they have availed themselves of a COVID-19 test or has been cleared by a medical professional. Preferably, that employee should know not to attend the workplace in the first place and in order to achieve this level of individual responsibility taking among staff, employers ought to consider amending their policies to stipulate clear expectations where an employee is unwell.
For further information, the Safework Australia website https://www.safeworkaustralia.gov.au/ has industry specific resources to assist employers in creating a COVID-19 safe workplace.
What if Employees Don’t Want to Return to Work?
For those employees who have been able to work from home these last couple of months, without the hassle of a commute or adherence to a dress code, and have developed a routine to perform their work whilst simultaneously doing a load of washing, the desire to continue to work from home may be quite strong. In addition to positive feedback from employees, employers have realised that reducing the number of employees at their premises may result in bottom line savings on the costs of commercial rent, cleaning, heating/cooling and other incidental office costs, as well as alleviating congestion in the workplace. These advantages must also be offset against the costs of a more sophisticated IT system to allow employees to work remotely and, as we discussed in our last client alert, the potential for employees to work less efficiently when not directly supervised.
However, what if an employee does not wish to return to the workplace? Employers will need to carefully consider the circumstances for any such resistance on a case by case basis, although need not agree to staff working remotely on a permanent basis so long as the reasons for this are predicated on reasonable business grounds. Obviously, for some employees (such as those that work in hospitality, retail, or logistics) they will have to return to the work premises to perform their work as it cannot be performed remotely but what of the employees who are still be able to perform the inherent duties of their role from a remote location?
In any case, the employer must have established their COVID-19 Safe Plan (as detailed above) before directing employees to return to work as it is obligatory for employers to provide and maintain a safe working environment in order to comply with work health and safety laws. Systems will need to be in place for maintaining effective hygiene, health monitoring and cleaning and employers will need to plan for the possibility of COVID-19 cases in the workplace and the procedures to follow in such an event.
Some employees may also have unique circumstances whereby a return to the workplace puts them at specific risk. For employees who suffer health complications that cause them to have weakened immunity, or those who live with and/or care for elderly relatives that are vulnerable, to require them to return to the workplace – particularly in circumstances that require them to commute via public transport – might create an unacceptable risk for their return at this stage of the pandemic. In these cases, employers will need to carefully consider directing those employees back to the workplace as to do so might be a breach of work, health and safety.
Nonetheless, if employers have taken the appropriate steps to ensure, as best as possible, a COVID-19 Safe workplace, where an employee fails to heed a reasonable direction to return to the workplace, the employer can take disciplinary action against the employee including up to termination of employment.
What are Employers not able to do?
For those of us who have cast a wistful eye towards the return of professional sport in Australia, a small selection of Rugby League players who have put their immediate employment in jeopardy by refusing to accept a flu vaccination, has created an interesting conundrum. At this stage, the Queensland State Government have required that any players entering the State to play Rugby League cannot do so unless they have received up-to-date influenza and pneumococcal vaccinations. So can an employer insist that its employees accept a flu vaccination, despite objections on moral or religious grounds, as a precursor to return to work?
An employer may well strongly encourage its employees to get the flu shot by providing free vaccinations to its employees. After all, whilst the seasonal flu vaccination will not protect against COVID-19, the threat of contracting both simultaneously has been described by health authorities as an extremely negative situation; however, unless the employer is a residential aged care facility, an employee cannot be forced to get a flu vaccination. As for employers who run residential aged care facilities, there are no exemptions for getting vaccinated on personal, cultural or religious grounds; the only valid exemption is for medical reasons.
In addition, most members of our community will be familiar with the push from the Federal Government urging Australians to download the COVIDSafe application on their mobile phones. Essentially, this app allows users to upload medical data if they have, at any point, tested positive for COVID-19 and, when their phones (which are presumably on their person) come into range of another person with the COVIDSafe app, a contact tracing record is created to allow health authorities to ‘follow the path’ of the virus in the event of another spike in infections. Despite it being voluntary to download and use the application, many employers will want their employees to download COVIDSafe to help protect the health and safety of their workforce, customers/clients and the wider community. Whilst an employer might actively encourage its employees to download and use the new app, it cannot force them to do so.
This means that while an employer may encourage their employees to download or use COVIDSafe, they cannot direct employees (or any other person) to download or use COVIDSafe, either on a personal mobile device or on a mobile device provided by the employer for business use and any pressure to do so, whether by positive obligation, or by adverse consequences, is unlawful.
We are Here to Help
Our team is currently engaged in a staggered return to the office and is otherwise working remotely but still servicing clients as usual including, with the aid of technology, via virtual meetings and conference calls. If you require further information in relation to any aspect of this client alert or assistance in dealing with an employment law related issue arising from the COVID-19 crisis, please feel free to contact us.
This alert is not intended to constitute, and should not be treated as, legal advice.
This article is for general information purposes only and does not constitute legal or professional advice. It should not be used as a substitute for legal advice relating to your particular circumstances. Please also note that the law may have changed since the date of this article.