Items for employers to take into account in their approach to COVID-19 risks in the workplace – as at November 2021
Employers in NSW will be well aware of their WHS obligation to “ensure, so far as is reasonably practicable”, the health and safety of their employees and others in the workplace. What of employer obligations with respect to COVID-19 risks?
Consultation with Employees
The Work Health and Safety Act 2011 requires the employer so far as reasonably practicable to consult “with workers who carry out work for the business or undertaking who are, or are likely to be, directly affected by a matter relating to work health or safety” S.47(1). A recent decision of a Fair Work Commission Full Bench held that a failure by the employer to adequately consult before requiring workers to have received a COVID-19 vaccination was unreasonable – CFMMEU & Matthew Howard v Mt Arthur Coal Pty Ltd T/A Mt Arthur Coal [2021] FWCFB 6059.
Taking all reasonably practicable steps
Employers must take all reasonably practicable steps to minimise COVID-19 risks in the workplace. This would include implementing various measures aimed at preventing COVID-19 entry to the workplace, such as, for example, social distancing, use of masks / face shields, testing, cleaning and sanitizing, vaccinations and compliance with public health orders. Keeping up to date with any major developments as they occur, particularly regarding control measures, as necessary is important. Note various government websites provide relevant information about COVID-19, for example https://www.nsw.gov.au/covid-19
Workers Compensation Implications
Amendments were made to the NSW Workers Compensation Act 1987 (WCA) in May 2020, providing that in prescribed employment, including employment in industries such as healthcare, education, retail, transport, emergency services, construction, disability and aged care, dining and entertainment, if a worker during the time they are working contracts COVID-19, there is a presumption that the COVID-19 was contracted in the course of their employment. There was an opportunity for the employer to prove otherwise but with a presumption in place, this made it likely that a workers compensation claim would be successful.
This presumption may shortly be removed with a bill which was passed in the Legislative Assembly of the NSW Parliament on 24 November 2021. Whether and when it will pass the Legislative Council and commence operating remains to be seen. Removal of the presumption would not mean that a worker will be unable to make a workers compensation claim, in respect of COVID-19 infection, rather than an automatic right to workers compensation. Workers compensation insurers will be able to be informed by contact tracing and genomic testing information.
https://www.nsw.gov.au/media-releases/nsw-government-to-save-business-half-billion-dollar
Establishing and implementing workplace policies
While the NSW Government indicates that from 15 December 2021 COVID Safe plans will be optional for businesses, similar policies and plans remain useful from a work health safety perspective. Having a clear and comprehensive policy setting out how the employer will control the risk of COVID-19 in the workplace may go some way towards satisfying the employer’s obligation regarding the health and safety of its employees and others present in the workplace. Among other requirements is effective implementation of such a policy.
Effective implementation of any workplace policy is an area that sometimes falls short in practice. An employer should take steps to ensure employees are aware of and understand your COVID-19 safety policy as put in place and updated from time to time. The policy should be readily available for all employees to refer to. Employee obligations under your COVID-19 safety policy as well as the overarching duty of care should be conveyed to all employees such that they are mindful of their obligations. Enlisting employee input in formulating the employer’s workplace COVID-19 safety policy is one approach which may advance employee buy in and would be consistent with a recent Fair Work Commission decision. Making available in the workplace up-to-date, objective relevant medical information may also be useful.
Review of current workplace practices, including any COVID-19 policy that is in place, will be necessary as the pandemic situation unfolds, such as when new public health orders are made or new preventive regimes are advised. The emergence of Omicron illustrates this. In short, the employer will need to adapt its policies and practices to changed circumstances as and when changes arise.
Mandatory Vaccination
Employers should comply with any public health orders or other applicable legislation currently in force. Vaccination against COVID-19 has become a requirement among teachers, health care workers and others in NSW. In the short-term, as at November 2021, most non-essential indoor spaces are limited to vaccinated patrons.
Whether a NSW employer can implement a policy requiring mandatory vaccination of its employees against COVID-19 will depend on whether such a requirement is reasonable and lawful. In high-risk situations, such as may exist in health care, a mandatory vaccination policy may be lawful and reasonable. However, in the absence of government health orders or other specific legislative provisions, it would be unwise for an employer to hasten to mandate employee vaccinations where there is thought to be a lesser risk of transmission. We note in this regard that the Fair Work Ombudsman set tiers of work to assist in assessing whether making vaccination against COVID-19 mandatory for certain employees is likely to be reasonable. Individual circumstances, including medical factors, would also need to be taken into consideration.
Employee Contracts & Vaccination Status
As COVID-19 restrictions continue to be eased and the economy re-opens, employers should consider whether to have provision as to vaccination status in new staff contracts of employment. Further, review of contractual provisions in relation to COVID-19 risks for existing staff could well be prudent, in addition to reviewing and/or updating workplace policies. Please contact us if you would like suitable contract clauses drafted.
Further steps
While the situation with regard to the COVID-19 pandemic is fluid, employer obligations remain and must include the employer’s response to COVID-19 as applies in their workplace. It will depend on individual circumstances what measures should be put in place from time to time, which is why employers should be guided by professional advice as to their specific situation and requirements.
N.B. The above points are not exhaustive, are general in nature, and do not necessarily reflect all recent developments. They are not a substitute for professional advice. Bridgeford & Associates – Lawyers can assist clients seeking specialized legal advice in Employment law – please feel free to contact us.