After a difficult two years, as we enter the third year of the global COVID-19 pandemic, Australia is transitioning to “living with COVID” which has seen the easing of COVID-19 restrictions and the reopening of state borders (with the exception of Western Australia).
The transition phase of the pandemic has not been without its hurdles, with December 2021 and January 2022 seeing COVID-19 testing and pathology services overwhelmed; worker absences affecting the supply chain and productivity and in many cases resulting in business closures; a shortage of rapid antigen tests (RATs) and many forced into self-isolation during the holiday period.
Whilst the State Governments have re-introduced some COVID-19 restrictions aimed at managing COVID-19 during this transition period, as the “new normal” starts to take shape, it is anticipated that we will continue to face these kinds of challenges. For workplaces in particular, the transition phase significantly changes the game for employers and workers alike.
Managing the Workplace
Federal and State Governments are largely stepping back from restrictions and directions affecting business and employers. Employers are navigating what the workplace looks like for their business, including managing issues where remote working is not an option; return to face-to-face working; working from home and hybrid arrangements.
One constant throughout the pandemic are the work health and safety (WHS) duties which employers owe to workers and other persons under WHS laws and regulations, including a duty to take reasonably practicable steps to minimise the risk of COVID-19 in the workplace. The duties have not been watered down and an employer’s WHS obligations remain significant in the pandemic environment.
Employers also need to be aware of any notification requirements which may apply under WHS laws and regulations, or public health orders, where workers have contracted COVID-19 at the workplace.
Consequently, employers need to ensure that they take action to prepare and manage the risk of exposure to COVID-19 in the workplace so far as reasonably practicable, including ensuring appropriate control measures, response procedures and notification processes are in place.
Reassess the Workplace
The pandemic has been a moving feast which has had a significant impact on workplaces, including the impact of legislation changes, government-directed shutdowns and restrictions, and public health orders.
This next phase of the pandemic is no different, with a number of evolving factors affecting workplaces and employers. Such factors include:
changing restrictions and public health orders;
the introduction of new self-isolation requirements and “close contact” definitions;
reopening borders and increased mobility;
the extensive level of community transmission now present;
the move to utilising RATs;
vaccination mandates, including booster shots.
Employers’ obligations are ongoing and therefore employers need to review and assess their workplace, including undertaking new or updating risk assessments to determine appropriate WHS safety measures for managing COVID-19 in the workplace. A risk assessment conducted at the beginning of the pandemic should be performed again in the context of the current environment.
Where employers continue to utilise working from home (WFH) arrangements or other remote work options, any such risk assessment should also review and assess these arrangements, to determine potentials risks, bearing in mind that employers’ WHS duties extend to WFH and remote working arrangements.
Employers should also consider workplace policies and procedures in the context of updated risk assessments and consider appropriate changes. Make sure you consult with your workforce about changes where you need to do so, and in particular WHS matters.
Appropriate and Proportionate Measures
A failure by an employer to implement appropriate and proportionate control measures to manage the risk of COVID-19 in the workplace may result in employee claims, work stoppages and disruptions, or investigations or prosecutions by WHS regulators.
As such, it is important that employers undertake new or update risk assessments, and where necessary implement or vary control measures for managing COVID-19 risks.
Employers must also bear in mind that when it comes to control measures not to adopt a “one size fits all approach”. Control measures need to be tailored to the workplace, and appropriate and proportionate to the identified risk.
Please contact our Employment Team at Henry William Lawyers if you require any assistance regarding your workforce or your workplace, including assistance with conducting risk assessments, introducing or reviewing workplace policies and procedures, or advice on work health and safety obligations.