COVID-19 in 2022 – what to do when COVID-19 affects your workers

Christy Miller, Claire Kosack and Anand Shah
01 Sep 2022 Time to read: 7 MIN

Having clear steps that are reviewed and updated as necessary is paramount to ensure both compliance with WHS obligations, but also to minimise or avoid broader risks associated with COVID-19.

Winter in Australia saw a significant spike in COVID-19 cases, influenza and various other viruses. While the data now suggests we have reached the peak of the third wave this is of course not the last wave we will need to deal with, and strategies need to be clear on how business can live and work with and around COVID-19. This is not the time to become complacent in managing the risks associated with COVID-19 exposure at work.

Employers should be reflecting on the increased prevalence of infection rates, and asking themselves, “ – is the business taking the appropriate and reasonable steps to ensure the protection of health and safety of workers?”

This article considers this question in light of recent government guidelines on managing COVID-19 outbreaks in the workplace and provides our top six key recommended steps on what to do in response to COVID-19 impacting your workplace:

  • Step 1: – Isolate – direct the worker to return home (if possible) and isolate
  • Step 2: – Clean – ensure the workplace is cleaned and disinfected
  • Step 3: – Assess – consider the exposure risk and inform other workers
  • Step 4: – Notification – consider any notification requirements
  • Step 5: – Support – ensure effective communication and support is provided
  • Step 6: – Review – consider the risks and control processes

Workplace Health and Safety (WHS) obligations under statute and public health orders

While two years have passed since the emergence of COVID-19, and restrictions continue to be eased in Australia, the risk of COVID-19 remains significant. Increasing rates of infection, news of the apparent limited effectiveness of vaccines on emerging variants and now a fourth booster create a confusing environment for employees and business alike. When considering how to manage this complex and evolving risk, employers need to have front of mind their WHS obligations when making decisions in response to COVID-19 outbreaks involving their workers.

Employers owe a primary obligation, under the relevant WHS laws to ensure, so far as is reasonably practicable, the health and safety of workers while at work. This does not mean operating a workplace that has no COVID-19 exposure or risk, but it does involve as a minimum, taking steps to keep workers safe while at work and limiting the spread of COVID-19, so as far is reasonably practicable.

What will constitute reasonable and practicable steps will depend on the particular workplace / industry being operated, but it will also be influenced by health directions and guidelines operating in the particular State or Territory.

When considering what steps should be taken in response to a worker contracting COVID-19, employers need to ensure that they are acting accordance with the relevant State or Territory public health directions.

However, in addition to the health directions, the Federal and State and Territory Governments have released guidance material that should also be reviewed when actioning the steps should be taken when one or more of your workers contracts COVID-19.

State and Territory guidance

States and Territories have specific information with recommendations on managing COVID-19 infection of workers:

Note: Safe Work Australia also provides additional information and guidance on how to keep workplaces safe. This includes industry-specific information on a range of topics including, what to do if a worker contracts COVID-19.

 

The Federal Government also recently published an information sheet for employers on managing COVID-19 in the workplace. which outlines the usual steps we have already been implementing since 2020 (most of which employers now do as a matter of course), including:

  • where possible, allowing workers to work from home
  • ensuring physical distancing
  • encouraging good hygiene practices
  • being aware of symptoms and making sure workers stay home if sick
  • ensuring regular cleaning is conducted.

Obviously, the directions and guidance material across the States and Territories does vary in terms of the level of detail and quality of advice and recommendations offered, but the following top six key recommended steps will be a strong basis for your response.

Step 1: Isolate – direct the worker to return home (if possible) and isolate

If a worker tests positive to COVID-19 at work, they should immediately return home (if possible) and isolate in accordance with the relevant State or Territory requirements, for example seven days or until the worker receives a negative result and their symptoms have subsided.

Employers should consider the practicalities of the direction to isolate / return home, and ensure that managers, supervisors and workers understand the expectations to comply with the direction to avoid confusion and potential further unnecessary exposure to COVID-19. For example, depending on the employer's business, an employer may be responsible for paying or arranging transport for the worker to their place of residence.

If a person cannot immediately return home, employers should direct the worker to isolate from all other persons, such as by placing the worker in a separate room and wearing a mask.

Step 2: Clean – ensure the workplace is cleaned and disinfected

As soon as reasonably practicably following the infected worker leaving the workplace, areas that have been used by worker should be cleaned and disinfected, such as:

  • the worker's immediate workspace/s; and
  • any common areas used by the worker such as the kitchen, reception, lifts etc.

Those responsible for cleaning should wear personal protective equipment.

While there is no requirement to shut down an entire workplace while the cleaning and disinfection process takes place, this is obviously an option if there has been broad or widespread exposure. If the business is to remain operational during the cleaning process, staff / public should be directed to avoid the exposed areas until they have been cleaned. While this process is underway, it would also be prudent to require other workers, clients and/or the public to wear face masks and engage in social distancing.

Step 3: Assess – consider the exposure risk and the need inform other workers

As part of the employer’s duty to maintain a safe workplace, as far as reasonably practicable, for all workers (and others) an employer will need to consider:

  • the nature of the workplace – including the presence of vulnerable employees/customers/guests, how closely individuals are required to work together, and the impact on the business of infected workers – will necessarily guide who must be informed of the presence of positive workers;
  • whether those who may have had close contact with a COVID-19-postive person need to know, and encouraged to monitor their symptoms and get tests; and
  • whether the business should require the removal of potential close contacts from the workplace.

While health directions no longer require close contacts to isolate, an employer’s WHS obligations operate in isolation from the health directions. The type of the employer’s business, the likelihood of employee cross-contamination in the workplace, and the consequences of infection on employers and employees should all weigh into this consideration.

We do recommend that employers make relevant inquiries to determine, to the extent possible, the likely infectious period and the worker’s movements and contacts within that period.

Generally, an employer can only disclose personal information of the infected person (including their name) if it is reasonably necessary to prevent or manage COVID-19 in the workplace. For example, it might be necessary to disclose the name of the person infected to the other person to determine potential exposure risks and to mitigate further exposure. Where possible, consent of the person infected to disclosure their name to other staff members should be obtained.

Workers exposed to the infected persons should also be encouraged to test and monitor the symptoms. The employer may also wish to consider issuing a direction that those exposed must return a negative test before commencing work. Whether this is appropriate and enforceable will depend, amongst other things, on the matters set out above and the current work practices and level of risk involved to the remaining workforce in not undertaking a test.

Step 4: Notification – consider any notification requirements

Businesses will also need to consider and comply with any notification requirements in place depending on the relevant State or Territory health directives / requirements. For example:

  • In Victoria, it is recommended that if the workplace (being a non-residential setting) has reported 5 or more cases of COVID-19 within a 7-day period, the relevant health authorities should be notified.
  • In Queensland, an employer must notify Workplace Healthy and Safety Queensland of a confirmed case of COVID-19 arising out of the conduct of the business or undertaking that either causes the death of a person or that requires the person to have immediate treatment as an in-patient in a hospital and work is a significant contributing factor.
  • In New South Wales, businesses are to notify SafeWork NSW if a worker is hospitalised, or dies, as a result of contracting COVID-19 at work.

Step 5: Support – ensure effective communication and support is provided

At all stages of the process, but particularly once the immediate risk of ongoing exposure has been managed via steps 1-4 outlined above, the employer should consider whether further communication or support is required to be provided the worker, but also to those impacted by the COVID-19 exposure.

In addition to the physical impacts of COVID-19, the requirement to isolate because of exposure to COVID-19 can be psychologically very challenging for those impacted. To address this risk, employers should also take steps to remain in contact with the impacted worker throughout the isolation period and offer appropriate support and assistance. This might mean offering flexibility on how and when work should be completed, and access to leave at a minimum.

Employers should also ensure that those directed home know what is expected of them when in isolation and any steps required to return to work (eg., returning a negative RAT or PCR test). As the effects of COVID-19 are varied, with some workers being asymptomatic, while others may be sick for long periods of time beyond the isolation period, the employer will need to consider what is required to ensure the worker’s safe return to work. This may mean extending the direction beyond the minimum period, and considering what reasonable adjustments should be made to allow the worker to perform the job.

Those impacted by the exposure or worker's absence should also be offered support and assistance about their potential exposure, business continuity or workloads. Providing clear communication and support to other staff, for example flexible or working for home arrangements, will also be key when managing the broader employment and safety risks associated by COVID-19 at work.

Step 6: Review – consider the risks and control processes

While the first 5 steps are key for managing the immediate risks associated with COVID-19 infection, employers should also consider whether a review of their risk assessments and control processes should now be undertaken.

Where there are significant or repeated cases of COVID-19 at the workplace, it may be necessary to make changes to work practices, procedures and policies to limit the spread / exposure to COVID-19. This may require reviewing and updating hygiene practices or implementing greater social distancing practices.

Key takeaway for managing COVID-19 in the workplace

It is clear that Australia is not out of the COVID-19 woods yet and perhaps will never be as COVID-19 continues to affect our working lives and businesses. Having clear steps that are reviewed and updated as necessary is paramount to ensure both compliance with WHS obligations, but also to ensure broader risks associated with COVID-19 are minimised or avoided.

The cost and time impact of COVID-19 management for business continues to mount. These steps are aimed at streamlining process, hopefully minimising overall costs and management time that must be dedicated to this issue.

If you, or your business, needs advice and support in responding to COVID-19 exposure in your workplaces, including compliance with remaining health directives and operating a COVID-safe workplace, please get in touch for more information.

GET IN TOUCH

Claire Kosack

Brisbane
Special Counsel
Disclaimer
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.