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20 Mar 2020

COVID-19: Protecting your most vulnerable workers when they need it most

By Shae McCartney and Bianca Mendelson

Consult early with all workers and particularly with those who have identified vulnerabilities or you have identified may be most impacted by COVID-19 from a WHS perspective.

Under various legislation and at common law, an employer has a duty of care to ensure the health and safety of workers and others foreseeably at risk from the business. Under the model WHS legislation (and under non-harmonised jurisdictions' WHS legislation) this duty is framed as ensuring, so far as is reasonably practicable, the health and safety of workers and others at the workplace. What is "reasonably practicable" will require a number of considerations including the likelihood of the risk occurring, the degree of harm that might result and the availability and suitability of a control measure.

This includes taking into account what we know about people's particular vulnerability. This may include thinking about how the unique circumstances and controls implemented in a crisis, such as the one being currently faced as a result of the COVID-19 virus, may affect them including whether they are at particular risk or, because of their vulnerabilities, the controls being implemented may not be as effective as hoped. It also includes looking at new or increased risks that are introduced by the control measures put in place to protect vulnerable people and the community from the spread of the disease – for example:

  • people who have known mental health issues who may be more significantly impacted by control measures like working from home, containment measures and fear of contact;
  • remote or isolated workers who may not have strong communication lines;
  • people who have known domestic violence risks who may be placed at greater risk because of working from home arrangements;
  • people who have identified pre-existing illness or injury who may be at greater risk in the event of exposure; and
  • people with parental or carer responsibilities.

This requires an employer to not just take this information into account in risk assessments but also to work through the various potential scenarios and think outside the box as to how the risk or control measures may impact different people in different ways. This generally requires consulting broadly, something not easy to do in a fast moving crisis situation.

Some within our community are more vulnerable to either becoming infected with the virus or suffering significantly worse symptoms if infected. Also some rely more on the controls we have in place to keep them safe from harm in the workplace, whether that be the additional support resources, mental health controls or emergency response capacity.

The Commonwealth Department of Health has identified people who are the most at risk of serious infection:

  • people with compromised immune systems (such as people who have cancer);
  • elderly people;
  • Aboriginal and Torres Strait Islander peoples (as they have higher rates of chronic illness);
  • people with chronic medical conditions;
  • people in group residential settings; and
  • people in detention facilities.

Further, the World Health Organization (WHO) has identified that people with pre-existing medical conditions such as high blood pressure, heart disease, lung disease, cancer or diabetes may be at increased risk.

Other vulnerable workers may include:

  • people who have high contact with customers / the public (eg. retail, hospitality, public transport and other public services workers);
  • emergency services personnel or healthcare workers; and
  • people in industries with a high risk of fatigue (eg. shift workers, transport).

Therefore, increased likelihood of some workers contracting the virus or the greater consequence of infection for people in the identified categories may require a higher standard of reasonably practicable steps to be taken to manage this risk.

The usual risk management process applies to the current COVID-19 outbreaks:

  • Identify hazards – find out what could cause harm.
  • Assess risks if necessary – understand the nature of the harm that could be caused by the hazard, how serious the harm could be and the likelihood of it happening.
  • Control risks – implement the most effective control measure that is reasonably practicable in the circumstances.
  • Review control measures to ensure they are working as planned.

As advised by the Department of Health and WHO, the nature of the harm that could be caused by a person becoming infected with COVID-19 and the seriousness of that harm depends on the individual's personal circumstances. Therefore, we recommend organisations under take a risk assessment that considers the different risk levels between the general workforce and those workers who may be more vulnerable to the virus such as older workers and workers with a known illness or workers who are at higher risk of exposure such as healthcare workers.

As new information regarding the virus becomes available, organisations must carefully review to effectiveness of the controls in place to ensure they comply with the most up-to-date health advice.

Keeping up-to-date:

Consultation

Consultation with workers underpins the entire risk management process. The model WHS laws require consultation, so far as is reasonably practicable, with workers who carry out work who are (or are likely to be) directly affected by a work health and safety matter. Therefore, organisations should both consult broadly with workers and specifically with vulnerable workers before making decisions on health and safety matters. This is of particular importance for vulnerable workers because they will know the most about their personal circumstances and may have important information that ought to be considered by the business before it determines and implements controls.

Tips for consulting with workers:

Discrimination considerations

There may be an overlap between a worker's personal circumstances that make them vulnerable to COVID-19 and personal attributes protected under anti-discrimination legislation (eg. age and disability / impairment). Organisations must ensure that control measures are reasonable and necessary to discharge the organisation's WHS duties. Some tips to comply with both WHS and anti-discrimination obligations include:

  • document the decision-making processes, particularly if it may have the effect of treating some people differently but is necessary to discharge WHS duties (Note: take particular care and seek advice where decision may be perceived to be because of a protected attribute such as race, age, disability, ethnic origin, parental responsibility or some other prohibited reason;,
  • base control measures, policies and procedures on up-to-date heath advice from official and reputable sources (see the 'Keeping up-to-date' section above) to ensure the reasonableness of actions; and
  • ensure control measures are done in compliance with legislative WHS duties (ie. can you justify the control measure as being necessary for the organisation to ensure, so far as is reasonably practical, the health and safety of workers or other persons?).

Duties of workers

Organisations should remind workers that health and safety is everyone's responsibility. The Model WHS legislation specifically requires all workers:

  • take reasonable care for their own health and safety;
  • take reasonable care that they do not adversely affect the health and safety of others;
  • comply, so far as the worker is reasonably able, with any reasonable instruction given by the business to allow it to comply with its WHS duties; and
  • co-operate with any reasonable policies or procedures notified to workers relating to health or safety at the workplace.

This will include encouraging workers to observe proper hygiene etiquette and reporting any recent travel to countries with high rates of the virus or contact with anyone infected with the virus.

What does this mean for you?

It is important that organisations make sure that the needs of their vulnerable workers are considered. We recommend that as a starting point you:

  • Consider the workforce within your organisation and which of your workers may be more impacted by COVID-19 from a WHS perspective.
  • Consider the specific areas of risk or worker vulnerability may exist in your workplace or industry.
  • Consult early with all workers and particularly with those who have identified vulnerabilities or you have identified may be most impacted by COVID-19 from a WHS perspective.
  • Encourage workers to discuss with you any specific or individual concerns they may have with respect to their health and safety, or the impact any proposed control measures may have on them.
  • Document your risk assessments, consultation efforts and decision-making processes with respect to risk management.

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Clayton Utz communications are intended to provide commentary and general information. They should not be relied upon as legal advice. Formal legal advice should be sought in particular transactions or on matters of interest arising from this communication. Persons listed may not be admitted in all States and Territories.