COVID-19 has created enormous uncertainty and confusion about what employees and employers are obligated to do when Health Orders are issued. Many businesses remain open in Victoria – kind of!
Employers’ Duty of Care Has Not Changed
Victorian employers’ duty of care to provide a safe place of work has not changed with the COVID-19 pandemic or with Chief Health Officer directions. The simple fact is that the employer is obligated to take all reasonable steps to prevent injury, disease or harm to others. COVID-19 and public Health Orders have created enormous complexity and cost in implementing your duty of care.
“If you can work from home, you must” WorkSafe Vic Website
Employees’ Obligations Has Not Changed
Employees remain obliged to take reasonable care of their own health and safety. If you put in place a COVID-19 action plan then an employee will be required to follow it (if it is reasonable int eh circumstances). Reasonable action plans may include:
- Preventative and containment measures including distancing, hand hygiene, wearing masks or even working from hime
- Reporting measures including reporting COVID-19 exposures and self isolating as needed (See WorkSafe Vic site for detailed directions)
- Changes in work practices to reduce or eliminate physical contact with others
- Increased cleaning of the workplace including surfaces etc
Can An Employee Refuse to Attend the Workplace?
There are certain circumstances where an employee can refuse to attend the workplace. One is if they are on sick leave (personal leave). It would be unwise to take uninformed action against an employee using their entitlements whilst they are ill. You are still able to ask for reasonable evidence to prove the sick leave is genuine.
Another occasion is if the employee has a genuine belief that it would be unsafe for them to return to work. In the current context, considerations for an employer may include:
- government health orders and directions to work from home if you can. Have you considered every option to allow someone to work from home? Obvious exclusions are manufacturing operations, transport and warehousing.
- If the worker has increased risk of falling critically / serious ill if they contract the virus
- Family care obligations (using Carer’s leave from their personal leave if they are part-time or permanent)
- Other considerations like family members’ risk of exposure or household members working in the frontline of health care
The worker must still make themselves available to do suitable alternative work including work they are trained or can do.
“An Employee can refuse to attend work IF there is a reasonable concern that he / she will be exposed to a serious risk to their health and safety from an immediate or imminent risk”
“Reasonable” has been a word vexing our legal systems for years. If you are not sure what to do then contact specialist advice through WorkSafe or your WHS specialist advisor.