As we move closer to full reopening in Victoria and NSW, the challenge for businesses is how to reopen safely. Open-plan offices, common areas such as meeting rooms and kitchens, hot-desking and the importance of air ventilation are factors that impact the risk of COVID-19 being transmitted in the office. But for all businesses across Australia, even those not under lockdown, the key emerging issue is the impact on safety, if any, of the interaction between unvaccinated workers and visitors.
So what can employers do to minimise this risk and maintain a safe workplace?
Follow public health orders
For those businesses that are currently subject to public health orders, the issue is largely out of their hands for the duration of the operation of the order. Those orders variously require businesses to ensure that unvaccinated workers and visitors (other than those with a medical exemption) do not attend the workplace - either across all businesses (such as in NSW) or for various roles (as in Victoria and the Northern Territory). Last month, the Northern Territory announced a vaccine mandate covering all public-facing roles, including those likely to come into contact with a vulnerable person.
Up until now, businesses, particularly those in COVID-19-affected areas, have been able to rely on the expert medical health advice of the government health departments that underpin these orders. As the nation moves to reopening due to hitting vaccination targets, however, the medical advice regarding the integration of the vaccinated and unvaccinated public seems unclear. On the one hand, businesses are currently under stringent orders not to allow unvaccinated workers to the workplace. Then, it appears, after a nominated date, unimpeded mixing of the population will be allowed in mainstream areas of life such as pubs, schools and restaurants.
So, what does this mean going forward if the orders do not restrict interaction between vaccinated and unvaccinated workers and visitors? Does this mean your business should also allow all unvaccinated workers and visitors to your worksite?
Conduct workplace-specific risk assessments
The obligation to ensure safety at the workplace is the responsibility of the person conducting a business or undertaking (PCBU). But what information should your business rely on in coming to a view on whether it should allow all unvaccinated workers and visitors to your worksite? As with the decision about whether to mandate vaccinations, the considerations in this type of risk assessment are very similar.
In essence, your business needs to undertake a risk assessment of the transmission of COVID-19 at the workplace, importantly noting the level of vaccination within your workforce at the time of reopening and any available medical advice (either government or independent) that applies to your industry and workforce.
Putting aside whether the government has mandated your workforce be vaccinated, the risk assessment factors that should be taken into account include whether:
- workers are required to interact with the public or other staff when performing their duties
- social distancing is possible or not
- the business is considered an essential service
- high community transmission is still occurring or if workers are at an increased risk of infection of COVID-19
- workers interact with individuals vulnerable to COVID-19, including family members.
Other factors that may be taken into consideration in the risk assessment include assessing whether:
- other health and safety measures (such as masks, sanitisers, distancing) are effective in protecting workers and other individuals in the workplace from COVID-19
- workers can work independently or work from home
- workers can conduct any client or customer interactions contactless or virtually
- the business is an essential service
- vaccinations are not available to some of the workforce due to legitimate exemptions.
Lessons learned from overseas
With many nations ahead of Australia, it is instructive to see the approaches that they have adopted.
In various European jurisdictions, including Germany, France, England and Ireland, implementation and enforcement of safe working environment processes are also important. Some examples include:
- limiting the number of people in the office at the same time, including by staggering days and times employees work from the office
- providing adequate air ventilation and circulation, naturally through opening windows and doors and/or mechanically using fans and air-conditioning
- encouraging regular cleaning and good hygiene by providing hand sanitisers and cleaning products
- arranging workstations and introducing "no use" zones to maintain physical distancing
- avoiding 'hot-desking', and where this is not possible, ensuring shared equipment is commercially cleaned before being passed on
- maintaining pre-attendance forms to identify whether an employee is well enough to attend the office, as well as a focus on attendance at any hot-spots
- imposing immunity requirements for workers. For example, in Italy, all workers, including office workers, are required to have a COVID 'Green Pass' - proof of vaccination, a negative test, or recovery from COVID-19 - to attend the workplace.
This publication does not deal with every important topic or change in law and is not intended to be relied upon as a substitute for legal or other advice that may be relevant to the reader's specific circumstances. If you have found this publication of interest and would like to know more or wish to obtain legal advice relevant to your circumstances please contact one of the named individuals listed.