While most businesses are returning to more normal operations following rolling lockdowns, it’s not all smooth sailing for employers and managers. Many business and employment decisions on how to best respond to and plan for COVID-19 related impacts are being made with little guidance from Governments or legal precedents. This becomes particularly difficult when dealing with the complexity of keeping staff, customers and the general public safe, whilst also maintaining business operations. While the extent of Workplace Health and Safety (WHS) and duty of care obligations for workplaces have generally been long established, deciding what applies through COVID-19 presents a new challenge.
WorkSafe, Victoria’s state health and safety regulator, has charged the Victorian Department of Health (the Department) with 58 breaches of the Occupational Health and Safety Act 2004
(Vic). These charges were made in relation to Operation Soteria, the hotel quarantine program implemented for returned travellers during the COVID-19 pandemic. The 15 month investigation found that for the period of March – July 2020, the Department failed to:
- Provide a safe working environment that was without risks to the health of its employees.
- Ensure that persons other than its employees were not exposed to health and safety risks (this can include members of the public).
These WHS allegations arose from findings about the way the Department operated the hotel quarantine program. The alleged breaches included:
- The failure to engage workers with infection prevention and control expertise in the hotels utilised for the program.
- A failure to provide security guards with infection prevention and control training.
- That the Department failed (or initially failed) to provide written instruction on the use of PPE.
These 58 alleged breaches contributed to the ‘second wave’ of COVID-19 cases surging throughout Victoria in mid 2020. The maximum penalty for each of these charges for a body corporate is $1.64 million, therefore the Department of Health could be liable to pay upwards of $95 million in penalties.
What is the issue for employers?
The crux of this issue is that an employer breached its duties to provide its employees with a safe working environment and subsequently put non-employees at risk. This situation is one that many employers may find themselves faced with as the restrictions across NSW begin to ease.
Of importance to businesses owners and managers, these charges arise from the determinations that the employer:
- Breached its duty to provide employees with a safe working environment.
- Subsequently put non-employees at risk.
Importantly, these duties cannot be avoided by a waiver.
In NSW, the removal of restrictions on 15 December 2021 does not change the obligation upon employers, building owners or facility and site managers.
What does this mean for employers?
As Australia begins to open up, it is important for employers to implement plans and measures to ensure that they do not find themselves in situations where they are breaching their duties to their employees, customers and members of the general public. It is apparent that this will not be a simple or straightforward task, particularly in situations beyond the employer’s control.
General ways in which employers can ensure they provide their employees with a safe working environment include:
- Creating and maintaining a COVID-19 Safety Plan.
- Carrying out risk assessments that are not generic, but consider the practical realities of the business and each individual role.
- Evaluating and updating WHS policies.
- Keeping up to date with the everchanging advice and rules outlined by Governments and regulators.
However, even with following these general guidelines, there is not a ‘one size fits all’ method to create a COVID-19 safe working environment. Different types of businesses will have different specific methods of protecting their employees and non-employees from being exposed to or contracting COVID-19. That is, employers will have a different way of ensuring their staff are protected within a café environment, compared to an office environment, and compared to a hotel quarantine environment. In saying that, ensuring staff members are vaccinated has proven to be a good place to start.
Situations where staff are unvaccinated is where this situation become complicated. This is where the arguably best layer of protection against COVID-19 is non-existent for these workers, putting their employers in a particularly difficult and vulnerable position. If these unvaccinated individuals return to work, vulnerable to COVID-19 in comparison to their vaccinated colleagues, it is especially imperative that their employers have a comprehensive and business specific COVID-19 safety plan to avoid being penalised.
In situations where these specific measures are not in place and unvaccinated staff are returning to work, workers may be exposed to an unsafe working environment. Extending this, in most situations it may be simply impractical for these workers to return to work, specifically when these individuals are coming into regular contact with their colleagues, customers and the general public. This is due to the potential repercussions, including penalties, fines or contracting and spreading COVID-19.
Where businesses are confronting these significant and complex issues during this difficult transition, ongoing employee dialogue and robust policies and procedures, along with best practice WHS, will likely provide a strong foundation to minimise business risk. Seeking early professional advice, tailored to the specific business circumstances, is also prudent.
Hicksons Partner, Warwick Ryan, has been assisting businesses to plan for and navigate these complex circumstances. Please contact Warwick at [email protected]
Post by Hicksons Partner, Warwick Ryan, and Paralegal, Sophie Amanatides.