As employees begin to return to work, it is important that businesses are reminded of their duty to provide a safe working environment.
In Australia, this is governed by the Work Health and Safety Act 2011 which states that any person
“…conducting a business or undertaking must ensure, so far as reasonably practicable, the health and safety of workers engaged, or caused to be engaged by the person…while the workers are at work in the business or undertaking.”
This legislation establishes a primary duty of care to employees, ensuring the health and safety of employees is not compromised as a result of the conduction of business.
During the COVID-19 pandemic, employers will need to ensure they adapt their health and safety procedures by implementing and reviewing specific control measures to minimise risk and manage a safe return to work.
Strategies can include:
- Monitoring the COVID-19 situation regularly
- Complying with Work Health and Safety Laws as well as federal, state and local government orders
- Reviewing current disease and infection policies
- Preparing for cases of COVID-19 in the workplace to allow for effective and efficient responses
- Social Distancing
- Good Hygiene Measures
- Regularly cleaning and disinfecting the workplace
- Putting up signs to remind workers of the COVID-19 risks and responsibilities
- Changing the layout of the workplace
As a public health emergency, these control measures should be regularly reviewed in line with current health information.
If employers do not ensure the health and safety of their employees and a worker contracts COVID-19 from the workplace, it is impossible that they may be faced with legal action.
The tort of negligence provides relief to those who have suffered injury or loss as a result of another failing to take reasonable care. In Australia, the duty of care owed by employers to their workers is recognised at both statute and common law. It follows that employers may be in breach of this duty if it can be proven that the employee has contracted serious injury or loss directly linked to their employer’s failure to disclose and manage the spread of COVID-19.
Australia’s Worker’s Compensation scheme, powered by the Workers Compensation Act 1987, will also provide financial compensation to workers who have received an injury in the course of their employment which can be a disease.
In managing the spread of COVID-19 in the office, it is also important employers are aware of their obligations in regard to the collection, use and distribution of sensitive health information about employees.
This information is generally regulated by state and federal privacy laws. In Australia, employers generally may only disclose sensitive health information about an employee where it is reasonably necessary to lessen or prevent a serious threat to life or health.
It is always advised that any collection, disclosure and use of employee information is done with consent.
The return for work after COVID-19 for any business will be challenging. Employers must be aware of their obligations to safe working environment for their employees to manage the spread and protect themselves against legal action. If employers are unsure of their legal obligations regarding employment law, it is important they seek independent legal advice from an employment lawyer.
