What are my Workplace Health and Safety (WHS) obligations?

Employers, as a Person Conducting a Business or Undertaking (PCBU) under the WHS laws, have a primary duty of care to ensure, so far as is reasonably practicable, the health and safety of workers and relevant other persons. WHS controls may include encouraging increased personal hygiene and providing hand sanitiser.

Will my business continuity insurance respond?

Maybe. Some insurance policies provide for pandemic cover. Others may include a pandemic within the definition of ‘force majeure’.

Before any decisions, which have a significant impact on the bottom line, are made, you should consult your insurance policy, broker or a specialist insurance lawyer.

Can I close the workplace or ask people to work from home?

Yes. As the occupier or owner of a workplace, an employer has the right to control who enters the workplace and the conditions of entry.

Employers also have the right to issue reasonable and lawful directions to their employees, for example, disclosing recent travel or not attending the workplace.

The key is making sure each direction is reasonable and lawful.

What about anti-discrimination law?

Employers risk discrimination claims if they base decisions about work on the grounds of a protected attribute, like race. In some cases, seeking unnecessary information may be unlawful. However, a range of exceptions can apply. Decisions should be sensible, and based on expert data.

If we close, or need to isolate our workforce, do we need to pay?

It depends.

If an employee can work from home, they remain at work and will need to be paid.

If an employee cannot work from home, the Fair Work Act 2009 (Cth) and some enterprise agreements allow for the unpaid stand-down of employees.

An employee may be able to access their leave during a proposed stand-down.

What about an employee’s privacy?

Under privacy laws and state based human rights legislation, employers should understand the extent of the personal health data an employee might be obligated to disclose if they contract coronavirus or are symptomatic of it.

Practically, what should I be doing?

COVID-19 presents employers with a range of risks (legal, economic, reputational, and cultural).

Risk management tools should be applied.

An employer can consider a holistic risk assessment, considering the likelihood of an outbreak (based on current expert information), against the degree of harm that might result (such as the economic risk of closing the workplace, interruptions to the supply chain, impact on clients/customers).

The risk assessment will need to be updated regularly, and involve the organisation’s top decision makers.

A risk assessment commissioned by a lawyer, for a specific purpose, may be subject to legal professional privilege. To discuss this, please reach out to our team.