Written by Sallie Emmett
The responsibilities of employers when COVID -19 is transmitted to people at work has been exposed by the cluster of COVID-19 cases associated with Qantas baggage handlers, the fact that 50 Qantas and Jetstar staff have been infected with the virus and the concerns expressed about workers on cruise ships. The number of health care workers who have been infected overseas has also identified the vulnerability of particular workforces who provide essential services during a pandemic.
The Maritime Union of Australia, the Transport Workers Union, and the Health Workers Union, are some of the organisations who have raised concerns about the steps taken by employers to protect their members.
Employers should recognise that they have a special relationship with and responsibility for their employees. That relationship places an obligation on employers (under legislation and by virtue of their relationship) to “ensure, as far as is reasonably practicable, the health and safety of employees while they are at work”.
The government has also made directions and recommendations to ensure the risk of exposure to COVID 19 is minimised. Some of those directions and recommendations have had a significant effect on workplaces and the manner in which people can continue to work during the pandemic. This includes who should continue to work, the role of essential services and who should work from home.
This highlights the need for employers to ensure that they:
- take all reasonable steps to keep their workers safe and limit the spread of COVID – 19 by;
- providing communications (verbal, written, by phone and electronically) to employees about the dangers of COVID -19 in the workplace e.g. email alerts, checklists, signage, in house services;
- ensuring that government guidelines are and are able to be followed by employees when they are at work e.g. hand washing, social distancing
- temporarily closing their businesses if workers cannot be kept safe.
- take into account the needs of vulnerable workers by undertaking individual risk assessments and taking steps to mitigate the risks to those employees;
- prepare an emergency response plan to implement if there is exposure to COVID-19 in the workplace;
- take all necessary steps to report and limit the spread of the virus if a worker is diagnosed with it;
- enable the workplace to be relocated to a “home workplace” for employees by introducing or accessing appropriate technology; and
- recognise that an employer’s duty also applies to psychological health and take all reasonable steps to reduce psychological risks to employees at work that relate to the pandemic.
Employers should also understand that employees may be covered by workers compensation insurance if it can be established that an employee’s illness arose out of or during the course of their employment. Currently, there may be an obvious link to an employee’s workplace if an employee contracts COVID-19 as a result of being exposed to someone who has the virus at work. However, if community transmission increases, establishing the time and place of contraction may be difficult.
Changing an employee’s workplace to “home” may expose an employer and employee to different health and safety risks and commercial risks associated with security. Requiring employees to enter into a “working from home agreement” and to complete a safety checklist associated with the work environment which refers to an employee’s specific responsibilities in such circumstances can limit any the risks related to the fact that employees are working from home.
Employers should also assess employee complaints about work practices that allegedly expose employees to higher risks than necessary. Such complaints should be taken seriously and be assessed appropriately as employees may seek remedies associated with adverse treatment at work if they are detrimentally affected by their employer because they made a complaint during this time.
As this pandemic has impacted everyone in quite an extraordinary way recently, and we have all, including our government, had to take urgent and unusual steps to limit its spread, employers should remain well-informed about the risks by updating their knowledge, (from appropriate sources), about the manner in which the virus is spreading so that they can continue to assess the risk to their workers in light of any new information provided.
Employer’s should also be able to justify any action they take during this time and keep records of any steps taken to protect their employees. We anticipate that life will return to normal or a “new normal” in due course and employees may then reflect on how appropriately they were treated during the pandemic. It is possible that they will seek to assert particular rights in the future which relate to the time of the pandemic if they consider that they were adversely affected, treated unfairly or not appropriately protected by an employer.
If you have any questions about your responsibilities as an employer or your rights as an employee please contact us.