The employment related implications of COVID-19

covid-19

It is clear that the government considers business a key part of its public health strategy. As government interventions are progressively increased, there is likely to be, at least for some time, less discretion for employers planning their immediate response to these issues, writes Nerida Jessup.

Over recent days and weeks, we have seen a significant ‘ramping up’ of government intervention in response to COVID-19; at the time of writing, there have been restrictions on the operations of business with further restrictions expected to be imposed shortly.

The nature of the Australian workforce has radically transformed in response to an unprecedented public health crisis – and employers have had to make decisions quickly.

From a health and safety perspective, one of the notable features of this crisis is the messaging from regulators and government that business has a lead role to play in managing the public health issues associated with COVID-19.  While employers owe an obligation to manage risks to its workforce while they are at work, there seems to be a broader expectation that businesses will play a role in managing this issue beyond the nature of the duty which strictly arises under workplace health and safety laws. By way of analogy, it has not been the case that employers have been expected to manage seasonal influenza as an occupational hazard in the past. In contrast, SafeWork NSW has asked employers to notify it of any confirmed COVID-19 cases, where, strictly speaking, WHS legislation does not require the reporting of such illnesses.

It is clear that the government considers business a key part of its public health strategy. As government interventions are progressively increased, there is likely to be, at least for some time, less discretion for employers planning their immediate response to these issues. As those restrictions are eventually lifted, however, there will be challenges for planning for the gradual return to work of large numbers of the workforce, but contingency planning for a significant number of illnesses and absenteeism more broadly.

While businesses will, of course, take steps to ensure that they seek to demonstrate appropriate corporate care, consideration will also need to be given to the implications of potential long-term changes to working arrangements

Managing the risks to frontline workers
Despite a large part of the community moving to work from home or even having been stood down, businesses still require frontline workers to continue to run essential operations.

Businesses with frontline or essential workers should have in place a plan which includes consideration of fundamental matters like workplace hygiene, social distancing, protection of customers as well as a protocol for managing suspected or confirmed workplace exposure to COVID-19. Those plans should be reviewed and updated as the situation develops. As a matter of course, workers should continue to be consulted on these plans.

Managing the remote workforce
From a health and safety point of view, those working at home are owed a duty of care to undertake that work safely, and this might include consideration of the ‘home office’ set up.

Further, employers should ensure the ordinary principles of risk management, risk control, and active supervision are applied to the changed workforce conditions. For example, consideration should be given to:

  • the manner in which the health and safety of workers who remain at the workplace can continue to be monitored by those in remote circumstances
  • the impact and safety implications of changed work practices. It may also be the case that workers are required to perform tasks that are different from those which they are otherwise routinely trained and expected to perform in ordinary circumstances. From a health and safety perspective, close consideration should be given to ensuring that these workers are in fact trained to perform any alternate duties and that there is a clear record of this
  • how to meet continuing obligations to consult with employees regarding changes to work practices, or risk management measures
  • how to address higher than normal degrees of anxiety and, including any added complexity for those workers facing increased carer responsibilities as schools are closed. Employers should have a plan to address these issues including ongoing and detailed communication with workers in relation to both existing decision-making, and also to provide comfort that the decision-making framework exists.

It is clear that the government considers business a key part of its public health strategy. As government interventions are progressively increased, there is likely to be, at least for some time, less discretion for employers planning their immediate response to these issues.

Workforce planning
Employees will have a range of questions associated with their leave and other entitlements. Casual employees will have concerns regarding their proposed payment arrangements during a shutdown and any time they are required to care for children who have been taken out of school or care (whether voluntary or as a result of schools being closed).

While businesses will, of course, take steps to ensure that they seek to demonstrate appropriate corporate care, consideration will also need to be given to the implications of potential long-term changes to working arrangements, and so this may lead businesses to avoid making commitments which may later need to be recanted.

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