James Mcdonald

By Thomas Parer and Calum Woods, NRA Legal

Due to the speed with which the COVID-19 pandemic spread and required social distancing to ‘flatten the curve’, many companies were forced to either stand down their workforces or organise and implement alternative working arrangements (including work from home arrangements) with little opportunity to reflect on the challenges associated with either course of action, including later returning the workforce to work.

And it seems just as quickly, the success of efforts to ‘flatten the curve’ in Australia mean that some of us will soon be returning back to our workplaces. But it’s fair to say that the way we work may look very different to how we’ve ever worked before, with more thought required about how to minimise the spread of contagious diseases in the workplace.

This post-COVID-19 paradigm brings with it some unique challenges and considerations for employers to face. In this article, we will unpack some of the factors you need to consider for employees returning to the workplace or continuing to work from home, and your obligations under work health and safety (WHS) law as the economy and your business wakes from hibernation.

How can I manage the risks to health and safety?

Under WHS laws, employers have a duty of care to ensure their employees’ health and safety so far as is reasonably practicable. Equally, employees have duties to take reasonable care for their own health and safety, and comply with any reasonable instruction given by their employer to enable this to occur.

Employees returning to the workplace

The first step in ensuring employees are able to return is making sure the workplace is safe. The protections that you will need to put in place will depend on the nature of the workplace, and even where it is located. For example, a store in a busy shopping centre will likely need to have more protections in place than a head office in a regional area.

With the flu season very nearly upon us, employees should be encouraged to stay home when sick. Symptoms of COVID-19, such as a fever, a dry cough, or tiredness, are similar to that of the flu which means that employees may still be inclined to attend the workplace even if they feel unwell.

SafeWork Australia (SWA) has recently published guidance for employers on preparing their workplaces, and the control measures employers can implement. SWA recommends:

  • promoting good hygiene, such as by providing soap and hand sanitiser to be used by employees;
  • maintaining physical distancing (ideally with employees at least 1.5 metres apart);
  • undertaking workplace cleaning;
  • providing appropriate personal protective equipment (PPE), such as gloves, or face masks.

You should also monitor your State or Territory’s health authority for information specific to your circumstances, including whether it is safe for employees to return to work.

Employees continuing to work from home

For employees who are required to continue working from home, there are still steps you can take to ensure their health and safety, and assist with the transition back to the workplace when the time comes.

By working from home, employees have had to turn their homes into their workplaces. You should ensure that similar precautions taken in the workplace occur at your employee’s home. A useful resource is a checklist to be completed by employees, that deals with issues like:

  • Is the floor of their work area level, with limited used of mats/rugs?
  • Are electrical cords safely stowed away so they do not pose a trip hazard?
  • Do they have an adjustable chair with appropriate back support?
  • Is the height of their computer monitor(s) slightly lower than eye level?

It is also prudent to require your employees to take a photo of their work space to confirm all relevant precautions have been taken.

Even though the employee is at home, they may still be covered by your worker’s compensation insurance policy, so taking these steps will also help reduce the risk of an incident.

What about mental health?

Ensuring employee health and safety doesn’t just end with physical wellbeing, and employers will also need to consider the mental health of their employees in circumstances where they have bene stood down or are working remotely.

Employees’ mental health may suffer if they aren’t working or if they are from working from home due to separation from people and activities that support their good mental health. In extreme cases, they may be at a greater risk of the effects of domestic and family violence as a result of being isolated with people who perpetrate violence against them.

Employers can and should take steps to minimize these risks wherever possible, which will also assist with the transition back to the workplace. Examples of measures to ensure good employee mental health include:

  • ensuring regular contact with employees ;
  • scheduling time for the team to interact in a more social capacity (i.e via Zoom or Skype); and
  • reminding employees of support services, like Lifeline, or your Employee Assistance Program (EAP).

What do I do if my employees don’t want to return to the workplace?

The Federal and many State and Territory governments recently released a roadmap for the easing of restrictions and so for most of Australia there is now a light at the end of the tunnel as to returning to their pre-COVID-19 lives.

As these restrictions ease, some employees may find that they prefer working from home or may be resistant or refuse to return to work despite the loosening of government restrictions.

Employers should discuss these objections to returning to the workplace with employees, and where reasonable, seek to address them.

For example, an employee who may be concerned about appropriate safety measures should be reassured by outlining the steps you have taken to prepare the workplace for their return.

Directions to return to work

In some cases, you may face employees raising unreasonable concerns, or being unwilling to discuss their objections. In this case, you may have to issue an employee with a direction to return to work.

At common law, employers are able to provide employees with a reasonable and lawful direction, for which refusal to comply will amount to misconduct.

It is worth noting that the direction must be lawful, so you should ensure you check the relevant health directive in your State or Territory to ensure your direction to return to work is lawful.

What is reasonable will depend on the circumstances of the direction. For example, a business in a high-risk area issuing such a direction where they have not implemented any measures to limit the risk of an employee contracting COVID-19 may not be reasonable, and may also be in breach of the business’s WHS obligations.

The issue becomes much more complex with casual employees, and the NRA has published a recent article on this subject for further guidance.

Flexible working arrangements

Some employees who have worked with your business for more than 12 months will also have a right under the Fair Work Act 2009 (Fair Work Act) to request flexible working arrangements, which may include a change to the locations of work, such as working from home.

To be eligible to make a request for flexible working arrangement, the employee must be either:

  • the parent, or have responsibility for the care, of a child who is school aged or younger;
  • a carer (under the Carer Recognition Act 2010);
  • have a disability;
  • 55 years of age or older;
  • experiencing family or domestic violence (DFV), or caring/supporting someone in their immediate family or household experiencing DFV.

An employee making such a request will need to make it in writing, and clearly outline what they are requesting and their reasons for requesting it. On receiving the request, you must provide a written response within 21 days which outlines whether the request is approved or refused. If a request is refused the written response must include the reasons for the refusal.

Employers can only refuse a request on reasonable business grounds, such as the change being impractical or resulting in a significant loss of productivity.

If an employer agrees to such a request, they should confirm an end or review date for the change to ensure it does not go on indefinitely, in particular where an employee’s circumstances change.

Making a request to access flexible working arrangements is protected under the Fair Work Act, and employees should not be penalised for making a lawful request.

If you are struggling with managing employees as government restrictions ease or are faced with a request for flexible working arrangements and are unsure on how to proceed, contact NRA Legal on 1800 RETAIL (738 245).