This article was written by Philip Willox, Nicholas Beech and Peter McKay.
It’s hard for some not to get a little excited and for many others, a little anxious. After the most unusual period most of us have experienced in our lives, the conversation has now turned to how we can safely come out from under the doona.
The Prime Minister, Scott Morrison, has emphasised the need for workplaces to become "COVID-safe" as part of winding back restrictions. The states and territories are picking up the running of what this looks like, and there are differences. In large part, it is also now over to business to get back up and running, if and where possible, and to do so in a ‘safe’ way. There remains a public health overlay of businesses and individuals being asked to do their part to avoid a second outbreak.
A significant amount of guidance has been issued to assist businesses comply with requirements around the gradual easing of restrictions and to address workplace specific WHS issues.
Assess the risks and implement appropriate controls
The starting point is the health and safety obligations enshrined in state legislation that place duties on parties, including those controlling business undertakings, to ensure health and safety in the workplace. There is a duty to identify, assess and eliminate or reduce the risk of exposure to COVID-19, so far as reasonably practicable.
Fulfilling these duties requires a risk assessment to identify any specific risks of COVID-19 exposure associated with the workplace and the controls to eliminate or reduce that risk. A COVID-19 risk assessment should include consideration of:
- How to achieve/maintain physical distancing
- Good hygiene practices
- Cleaning and disinfecting the workplace
- Any impacts requiring changes to emergency plans
- What information will be provided to workers
- New or changed risks arising from COVID-19, for example, mental health or psychological stressors, customer aggression, high work demand, or working in isolation
- How vulnerable workers will be protected
- Monitoring and reporting of possible symptoms of COVID-19
- Responding to a suspected or diagnosed case of COVID-19 in the workplace
- How and when the controls will be evaluated
As part of the risk assessment process it may be necessary to consult, cooperate and coordinate with neighbouring businesses, contractors, landlords or tenants about fulfilling work health and safety duties.
While achieving social distancing, hand washing, and hygiene control remain essential, other innovative measures such as staggering start and finishing times, blending work from home with office work and installing physical barriers may also be relevant.
To test or not to test
The medical opinion suggests there is little benefit in conducting health monitoring or temperature checks on workers in the absence of specific risks warranting additional controls. Temperature checks do not reliably identify that a person has COVID-19. The person may be asymptomatic or be on medication that reduces their temperature. It is also possible that the person may have a temperature for another reason.
Safe Work Australia advises that temperature checking may be warranted where workers live together in accommodation such as FIFO or agricultural workers or in workplaces where vulnerable people are present, such as hospitals and aged care facilities. For example, some workplaces in ‘fly in fly out’ industries have introduced online and face to face questionnaires, temperature checks, and rapid finger-prick blood screening to detect viral antibodies.
If implementing screening, care is needed to meet other requirements, such as privacy obligations. Testing should only be carried out by qualified/trained staff. Careful planning of the actions to take in the event of a positive result is also required.
While businesses can encourage workers to download the COVID-Safe App they cannot make downloading the App a condition of attending work or apply adverse consequences for not downloading the App. The legislation introduced as part of rolling out the App contains restrictions that prohibit coercion to download the App and penalties for breaching these requirements.
There have been calls for ‘all jurisdictions to introduce explicit WHS obligations’ to protect workers and ‘to prevent the spread of COVID-19’. It appears that Tasmania is introducing some specific new regulations. Otherwise, the COVID-19 controls are enforceable under current work health and safety laws.
Safety inspectors have powers to facilitate enforcement of COVID-19 related health and safety issues. They have a legal right to enter any workplace. Where an inspector forms an opinion of non-compliance, they may issue verbal directions, improvement or prohibition notices, or issue a combination of these. It is an offence to obstruct, threaten or interfere with an inspector who is undertaking their duties.
Safe Work Australia has published a Statement of Regulatory Intent setting out the enforcement approach generally during the COVID-19 pandemic to ensure compliance with work health and safety laws. The statement has been adopted by all Work Health and Safety (WHS) Regulators (except Victoria). It commits regulators to considering the unprecedented pressure on industry and apply a common sense and practical approach to interactions with workplaces.
Given this, regulators are likely to err on the side of advice and education at this time but will no doubt act where risks are not addressed. Significant non-compliance that leads to, or could result in, a case of COVID-19 is likely to be taken seriously in the current environment.
While Australia is tracking at the right end of the possible health scenarios, the economic and mental health impacts of COVID-19 and the restrictions introduced to control it, are nevertheless genuine and widespread. A positive, communicative and supportive environment is vital during the process of reopening businesses and communal workplaces. Genuine engagement between business owners, leaders and managers and the broader workforce will be important to inform the risk assessment process and to address genuine concerns.
Elected health and safety representatives, where available, can facilitate engagement and the exchange of ideas about preventative actions. They can raise and discuss concerns on behalf of workers and assist with solutions. Encourage workers and health and safety representatives to use existing occupational health and safety procedures, such as hazard and incident reporting systems, to record and respond to the issues raised. This will look and feel different in different businesses. Psychological risks should be considered as part of the risk assessment process with controls implemented where necessary.
Early and clear communication of the business plans and time frames for returning to work is essential. It is useful to establish and follow a clear communication plan that includes help and support available for workers. Provide specific information to workers about the COVID-19 risk assessment and the measures to minimise the risk of exposure.
Resources are out there
Safe Work Australia has established an ‘information hub’ with extensive resources for business, including industry-specific guidance. The hub includes:
- information for workplaces – advice on how to minimise the risk of exposure to COVID-19, including general and industry specific information
- a COVID-19 Resource Kit – resources for business to download and display in the workplace
- National COVID-19 SafeWork Principles – principles developed to help businesses prepare for a return to work as COVID-19 restrictions are eased.
The hub can be accessed here.
- National COVID-19 Coordination Commission COVIDSafe plan here