Untangling COVID-19 workplace requirements

The coronavirus pandemic has increased the complexity of workplace laws. It gets more confusing if your business is based in multiple states.

By Engel Schmidl

Since March, employers across Australia have been wrestling with the severe impact COVID-19 can have on workplace health and safety, as well as compliance with those laws. 

The fluctuating nature of the crisis, and its effect on different parts of the country and various industries, means organisations and their responsible officers must stay up to date with relevant information for their industry and location. 

To carry out their due diligence regarding the work safety legal obligations of COVID-19, employers need to regularly check in with the Safe Work Australia website, where there is a raft of information for employers, including a Small Business Hub. 

Employers and responsible officers should also regularly consult authoritative sources such as the Australian Government Department of Health and check frequently for any updates to safety advice there.

They also need to regularly check in with their state-based work safety authorities for their legal obligations specific to their state and industry. 

Keep abreast of local changes

The recent surge of cases in Victoria and continuing outbreaks around the world have shown the COVID-19 crisis is not over. COVID-related scenarios can rapidly change, so organisations need to ensure their plan is relevant and addresses all factors, including compliance with the changing legal requirements in their operating jurisdictions. 

For example, WorkSafe Victoria issued guidance on July 29 for new regulations made under the Occupational Health and Safety Act concerning notification obligations for employers.

"Employers have to notify WorkSafe immediately on becoming aware that an employee, an independent contractor or a contractor's employee has received a confirmed coronavirus (COVID-19) diagnosis and has attended the workplace during the infectious period."

Failing to comply with this regulation, which will remain in place for 12 months, could lead to fines of up to $39,652 for an individual or $198,264 for a body corporate.

There are differing employer obligations for COVID-19 incident notification from state to state, with regulations varying across the country, as well as penalties and fines.

According to specialist occupational and environmental medicine physician, Dr Ian R Gardner, keeping up with jurisdictional variations on COVID guidance can prove tricky for organisations, particularly for SMEs. 

"If you're in just one location, that's easy because you've only got to comply with the relevant state or territory law. But if you're in multiple states or territories, then you're in purgatory because the issue is that you might have to comply with multiple conflicting requirements," Dr Gardner says.

He says he has advised the organisations he has worked with during the crisis to consider the risk profile of their workers when making a plan. Risk factors like the interactions the organisation may have with suppliers, contractors, service people and customers are also essential aspects in preparing and updating COVID plans.

"What's the risk to customers, to contractors, to people who deliver stuff to my office? And consider each of those things, and then look at what the real risks are, what the control measures are, what I can put into control to make that better. And then, of course, the final thing is what's the cost. Cost is only the final thing in that equation."

Review and update your plan

Naomi Kemp, chair of the Australian Institute of Health & Safety, says many organisations, especially SMEs, were uncertain at the start of the pandemic about how to manage risks and legal obligations, but most have performed admirably ever since.

"Occupational Health and Safety professionals are finding the most challenging aspect of dealing with COVID for their SME clients is exhaustion. Exhaustion from being in a heightened state of uncertainty and crisis mode, which is taking its toll, both mentally and physically," Kemp says. 

She says organisations need to regularly revisit their COVID plan, updating when necessary as conditions change, and when the relevant authorities provide new information.

She says including employees in this process is vital because they can give coal-face feedback on existing or potential issues.

"A lot of how we can control the virus relies on human behaviour, so people are the solution," she says.

Kemp says organisations, at a minimum, should be covering the basics, such as:

• Reviewing and updating COVID-19 safety plans in line with regulatory requirements
• Running applicable checks and preparation to re-open for business when and if necessary, checking the condition of equipment and facilities and compliance with social distancing requirements 
• Ensuring sufficient resources such as handwash, sanitisers, PPE (e.g. gloves, masks) and signs/posters are in the workplace
• Monitoring plans for consistent and rigorous execution
• Prominently displaying their COVID plan (or a summary of it) in the workplace.

Getting prepared for the 'new normal'

Cormack Dunn, the principal of Worldsafe Legal and editor of the Australian Work Health & Safety Law Reporter, says organisations need to ensure their COVID plan is appropriate to their workforce and situation. 

He says plans need to be stress-tested and verified, especially if some of the pertinent procedures are being carried out by contractors. Like other experts, Dunn believes organisations need to be ready for the long haul. 

"For employers, they have to prepare themselves. It is going to have to be a sustained program that could go for years," he says. "That's the psychological shift that is now dawning on most people."

Navigating the "new normal" of workplace health and safety will be about moving beyond compliance with the laws, according to Professor Niki Ellis, a workplace health consultant and Adjunct Professor of Epidemiology and Preventive Medicine at Monash University.  

"Before it was a compliance model. You had to do this minimum amount to provide a safe working environment, and you still have to do that," she says. 

"Those laws are still there, and they are an essential starting point. But employers now need to think about additional contributions and what are the pertinent issues for them and their workforce. What would it make business sense for them to do in addition to the provision of a safe and healthy working environment?"

Dunn says the most important thing for organisations and their leaders is to put people first. 

"The focus shouldn't only be on legal liability; it should be on ensuring you're taking all reasonable measures to make your workplace safe."

This article was originally published in IN THE BLACK