This guide is for employers looking for ways to manage COVID-19 health and safety risks in the workplace. In Australia, employers have a legal obligation to ensure their workplace is free from risks to health and safety. But how can this strict legal duty be managed during a global pandemic? Let’s take a look.
Author: Farrah Motley, Legal Principal of Prosper Law and a workplace lawyer.
The workplace health and safety obligations of employers
In Australia, employers owe a strict legal duty to their employees to ensure the health and safety of employees while they are carrying out their employment duties. To discharge this duty, employers must:
- eliminate the risk of employees contracting COVID-19; and, if the risk cannot be eliminated
- minimise the risk of employees contracting COVID-19 as far as is reasonably practicable.
Workplace health and safety laws are enacted at the Commonwealth, State and Territory Levels. The Commonwealth legislation that applies to all Australian employers, is the Work Health and Safety Act 2011 (Cth) (‘WHS Act’).
Section 19 of the WHS Act sets out the primary duty of care of employers; the duty to eliminate and minimise health and safety risks.
Is an employer liable for health and safety breaches if an employee contracts COVID-19?
If an employee contracts COVID-19 during the course of employment and it can be proven that there was a connection between:
- the employer’s failure to discharge their work health and safety obligations to the employee; and
- the employee acquiring COVID-19,
an employer may be found to have breached the WHS Act.
However, it is important to note that the Australian health and safety regulators have issued a statement that they will take a supportive and educative approach towards employers in circumstances where an employee contracts COVID-19.
If an employer is found not to have made genuine attempts to address the risk of COVID-19 in the workplace, enforcement action may be taken but this is only likely where the employer’s conduct has created a serious risk to the safety of employees and the community.
How to reduce workplace risks associated with COVID-19
As an employer, it is insufficient to discharge the duty of care you owe to your employees by being reactive. You must take genuine and positive steps to reduce the risk that your employees will contract COVID-19 in your workplace and during the course of employment.
Some of the types of steps you can take to reduce the workplace risks associated with COVID-19 include:
Communicate with and educate your employees about COVID-19
Clear and regular communication and education is one of the ways employers can help reduce the risk of employees contracting COVID-19. This communication and education may take the form of:
- displaying posters about hygiene practices
- advising employees of employer’s vaccination and mask-wearing policies
- communicating the symptoms of COVID-19 and recent health advice
- communicating and enforcing the employer’s stay at home policy if employees are unwell
Consult with employees about COVID-19 health and safety risks
It is important to consult with employees regarding any health or safety risks they face while carrying out their employment duties.
Consulting with your employees ensures that they have had adequate buy-in on your strategies to reduce risk, and they have had an opportunity to express their views and consider the perspective of others.
Employers can also provide employees with a point of contact to enable them to share their concerns and issues on an ongoing basis.
To ensure that a robust consultation process is carried out with employees, employers should:
- consult with employees around the time you are conducting a risk assessment
- consult with employees about the strategies you are considering implementing to reduce the risk that an employee will be exposed to COVID-19
- consult with employees about whether the current workplace layout or policies are sufficient
- ensure decisions about which strategies to implement take into account physical distancing and hygiene
- consult with employees if you are considering changing current strategies to reduce the risks of contracting COVID-19
- enable employees to express their views around strategies and decision making and be part of that process
Conduct a risk review in relation to COVID-19
Conducting a risk review means carefully assessing the risks which may lead to an employee contracting COVID-19 during the course of employment. Employers will need to determine the risks and their likelihood of occurring, then develop strategies for overcoming or reducing those risks.
For instance, to avoid the spread of COVID-19, you can initiate systems that will reduce any physical contact between your employees and customers, such as:
- no-contact delivery options
- limiting face-to-face meetings
- limiting large gatherings
- requiring a negative COVID-19 test in high-risk areas
- providing hygiene products, including hand sanitiser and masks
- regularly and thoroughly clean the workplace
- consider whether working from home options should be available
- restructure the layout of the workplace to maximise social distancing
If you would like more resources for employers seeking to manage workplace health and safety risks, visit Safe Work Australia’s WHS Resources page.
Provide employees with personal protective equipment
As part of reducing the workplace health and safety risks associated with COVID-19, employers may provide employees with personal protective equipment and instructions on use.
It is also important that if the workplace of the employer means that the use of personal protective equipment is particularly important (such as a hospital or medical facility, convention centres, entertainment venues and bars), the employer enforces and monitors the use of PPE.
How can Prosper Law help?
Prosper Law provides expert employment law advice to businesses and executive-level employees in Australia. We can provide legal advice on all aspects of employment law.
Visit our employment law services page to find out more about hiring an employment lawyer.
Want to continue reading? Check out Can Employers Force Their Employees to be Vaccinated Against COVID-19?
Farrah Motley | Legal Principal
PROSPER LAW – A Commercial Law Firm for Businesses
M: 0422 721 121
A: Suite No. 99, Level 54, 111 Eagle Street, Brisbane, Queensland Australia 4000