Developments in the management of COVID-19 in the workplace
Worksafe Investigating COVID-19 Death
Worksafe Victoria are investigating the death of a call centre worker after he was subsequently identified as a close contact from a workplace exposure. His workplace is categorized as Tier 1 which according to the Fair Work Ombudsman is one where employees are required as part of their duties to interact with people with an increased risk of being infected with COVID-19.
This investigation will be of interest to employers who have a duty to take reasonable care of the health and safety of their workers. This will be an ongoing issue for employers as NSW rolls out its roadmap out of lockdown.
Amendments to the Workers Compensation laws already make it easier for employees in some occupations to access workers compensation if they are infected with COVID-19. Depending on the actions taken by employers they may find themselves liable for COVID-19 related illnesses and death if they are found to have failed to provide a safe working environment for their employees.
Court confirms that employees refusing to perform work that may expose them to serious health and safety risks are protected
A recent case in the Federal Circuit Court found that an employer took adverse action against an employee when the employee was dismissed for refusing to follow a direction to deliver a steel beam alone because of the safety risks.
The Court found:
- the worker had the right to cease or refuse to carry out work the worker perceived would expose him to serious health or safety risk under the Queensland Work Health and Safety Act 2011. The same provisions exist in the New South Wales law.
- the worker was exercising a workplace right by refusing to deliver the beam;
- there was a sufficient nexus between the exercise of the workers workplace rights and his dismissal from employment.
The worker was awarded compensation and penalties were imposed on the employer and its director.
In the coming months this type of issue is likely to be relevant in workplaces with respect to COVID-19. For example, in some instances it may be a lawful and reasonable direction to require an employee to return to the workplace where refusal may be sufficient reason to initiate disciplinary proceedings including dismissal.
In others, it may not be a lawful and reasonable direction, for example where an employee refuses to return to the workplace or carry out specific duties if they are likely to have a serious adverse outcome if they contract COVID-19.
Policies and Procedures
What the above cases highlight is employers must be aware of their duty to ensure the health and safety of their workers. Where employees are concerned about risks as a result of COVID-19, employers must ensure those risks can be addressed particularly considering the employers overriding duty.
It will be especially important to have a COVID-19 Safety Policy in place to address issues such as flexible working, leave, infection control/hygiene, vaccination, home working and remote working. It will be just as important to ensure the policy is properly adhered to and enforced by employers.
If you have any questions about employer obligations surrounding work health and safety considerations with respect to COVID-19, please do not hesitate to contact Sally Radford.