Coming out of COVID-19 – what are your employer’s legal obligations to ensure your health and safety?

One of the major themes from the Prime Minister’s office throughout the COVID-19 pandemic is: ‘try to find a way to work together’. As more and more employees start to return to their usual workplaces and ‘return to normal’ it’s clear that employees and employers alike are going to be required to take heed of this advice, perhaps even more so than ever.

But what does that mean exactly if you are an employee who doesn’t feel comfortable returning to your workplace? Below we outline your rights, canvass different scenarios and outline what you should reasonably expect from your employer.

First thing’s first, whether you are working from home or back at your regular workplace, your employer is legally obligated to ensure, so far as is reasonably practicable, the health and safety of their workers. And under Workplace Health and Safety (WHS) law ‘all employers or businesses are required to manage the risk of COVID-19 to workers and others in the work environment.’ The clear directive is that all workplaces must work in consultation with employees to assess the risk and minimise the potential spread of the virus by:

• ceasing non-essential work activities that involve close personal contact (less than 1.5m);
• implementing controls to reduce direct contact with workers and customers; and
• implementing controls to reduce environmental exposure.

Under the General Protections of the Fair Work Act 2009, an employer cannot take adverse action against an employee for making a complaint or enquiry about their employment. Examples of ‘adverse action’ include, but are not limited to: dismissing the employee, withholding legal entitlements; and treating the individual differently to others.

If your employer has asked that you return to the workplace but for one or more of a myriad of reasons, and you don’t feel comfortable to do so, then it’s most likely going to come down to whether your concerns for your health and safety, or of those close to you, are legitimate and reasonable.

‘It’s not you, it’s me’

If your concerns about returning to the workplace center around your own (or your family’s own) personal health due to a medical condition or other personal factor that puts you at an increased risk, do you have more options?

If you fall under one or more of the Department of Health’s category of people at greater risk of more serious illness with COVID-19 then it’s likely your concerns could be deemed legitimate.

In this scenario, it’s advisable that you discuss your health concerns and level of risk of contracting COVID-19 with your Doctor, your employer and if applicable your employer’s HR or WHS representative.

Unless your employer has directed you to stay home, or there’s an enforceable government direction in place, then you and your employer will need to come to a mutually agreeable arrangement. Such an arrangement should take into account advice from your medical practitioner(s) and make accommodations depending on the specific tasks your role entails and where you may be susceptible to an increased risk of contracting COVID-19. You can also expect the arrangement to be in place with a future review date to ensure it’s working for both parties and factoring in your up-to-date medical advice and risk factors.

‘No, wait, it’s actually you…’

But, what if I am actually deemed ‘healthy’ but it’s my physical workplace or my work-environment that concerns me?

Again, the recommended practice is that you have an honest conversation with your employer about your specific health and safety concerns to try to come to an arrangement that works for both you and your employer. Your concerns may lie around the getting to and from work, for example: parking, taking public transport as well as navigating lifts/entrances and other potentially other high traffic areas. Or, your concerns might be in relation to the workplace itself: the organisation’s hygiene practices, your ability to social distance and interactions with customers, clients and/or colleagues.

The question will then become one of whether your employer can make reasonable accommodations to alleviate your concerns and reduce your potential exposure to COVID-19. Now more than ever, consultation between employees and employers will be key, and finding mutually agreeable solutions may require some out of the box thinking.

When discussing your concerns with your employer, it may be worthwhile to consider the following points:

• Can the role be undertaken from home on a full time or part time basis? Where you are working from home, you should expect your employer to have a Working From Home Policy and Working From Home Checklist both of which are designed to clarify expectations and so far as practicable, ensure your health and safety whilst performing your role from home.
• Can rosters, work hours and/or duties be amended in a way which addresses your concerns, whilst also ensuring minimal impact to the continuity of business operations?
• Can start and finish times be staggered so that employees can avoid public transport in peak hours?
• If more car bays are now available, given that less people are now attending the workplace on any given day, can more employees be given the option to drive to work on certain days?

Keep in mind that what might be considered a ‘reasonable accommodation’ for one business, will likely differ for another and will largely depend on the business size, its operations and whether the ‘accommodations’ will place undue pressure on business practices. For a large number of often service-based businesses, such as restaurants, beauty services and bricks-and-mortar stores, the business simply cannot operate without employees being physically present at the workplace.

If you do believe that you are being asked to work in unsafe conditions, then you do have the right to refuse to do unsafe work. For example, if your employer has failed to demonstrate that they have implemented adequate hygiene measures or other COVID-19 risk reducing practices, then your concerns could be deemed legitimate and reasonable.

However, please keep in mind, under common law, all employees are obliged to follow their employer’s lawful and reasonable direction. Therefore if your employer directs you to attend work, and in the set of circumstances, this is a lawful and reasonable request, then you must follow it.

What should you expect from your employer:

In all cases, if you do not come to an arrangement to work from home, or to utilise paid leave, then you won’t be entitled to be paid for choosing not to work.

Though notwithstanding the above, it is reasonable to expect that your employer:

• Responds to you to address your reasonable concerns.
• Implements adequate hygiene measures. This may include an increased cleaning regime, in particular for high traffic areas and providing personal hygiene amenities, for example, hand sanitiser and hand cleaning products.
• Implements procedures to ensure employees, clients and customers adhere to social distancing guidelines. This may include cancelling team meetings and other group activities until further notice and/or Government directives indicate it’s safe to do so.
• Clearly communicates to employees the procedures that have been implemented to keep people safe, this may include reminders to:
  • observe social distancing;
  • stay home if unwell, even if exhibiting mild symptoms; and
  • keep the business informed if they are unwell, or of any confirmed or suspected exposure to COVID-19.

Given the widespread community concern and the speed at which we have witnessed information about COVID-19 changing, all employers big and small should be addressing employee’s concerns and taking all concerns seriously. Of course, every specific scenario and perceived level of risk will differ, but unless your health and safety concerns are based on a far-fetched notion, then your employer should be proactive in seeking to find reasonable and practical solutions that work for both you and the business.

We wish you good health.