What issues may arise?
The obligations in relation to providing a safe workplace, where reasonably practicable, have not changed – but what is different now is the complexity of meeting those obligations.
In planning a return to the workplace in this environment, employers must manage various (and at times intersecting) obligations owed under federal and state legislation, applicable industrial instruments, individual employment contracts and company policies. These obligations are now being supplemented by advice and directives from governments, health officials and regulators, all of which are updated regularly.
Employers will also need to be guided by the unique dynamics of their own workplaces and the circumstances of their staff. In this environment a “one size fits all” approach is unlikely to be effective or appropriate, and employers must consider individual circumstances to reduce the risk of legal challenge and employee claims.
What should you be thinking about?
As businesses put together return-to-work strategies, it is important to consider the following:
- Strategies to minimise the spread of COVID-19 in the event of an outbreak and potential liability in relation to workers who become sick.
- The logistics of managing return to work, including a staggered or phased approach, operational requirements, office infrastructure, stakeholder expectations, reliance on public transport and staff expectations.
- Undertaking a comprehensive workplace risk assessment, and fulfilling consultation obligations, in compliance with applicable work health and safety laws.
- Implementing new or revised policies and procedures dealing with office hygiene, social distancing and personal leave, and directing employees to take specific preventative measures.
- Supporting employees in their transition to the new working environment with a focus on mental health and well-being.
- Varying working arrangements (including hours of work and place of work).
- Employer and employee rights and obligations under JobKeeper laws and the transition away from the JobKeeper scheme at the end of September (when the scheme expires).
- Whether and when restructures, redundancies and/or stand downs may be necessary.
- The need for flexibility to accommodate employees’ individual circumstances and to allow for future changes (particularly if there is a second wave of COVID-19 infections as experienced in other countries).
- An appropriate and sensitive approach to employee circumstances, questions and requests in order to both support staff and reduce the risk of legal challenge.
How can we help?
Our Workplace Advisory team is available to work with you to meet the challenges brought about by COVID-19 to keep workers safe and informed, preserve business continuity and adapt to a post-lockdown environment.
Click here to read partner Bridget Little quoted in an Australian Financial Review feature 20/5: “Employers face legal minefield of virus issues”.