Legal speak

DUTY OF CARE AND COVID-19

Everyone has the right to be safe at work, especially during the COVID-19 pandemic. An employer’s obligations under the Occupational Health and Safety Act 2004 (OHS Act) and Occupational Health and Safety Regulations 2017 (OHS Regulations) do not change as a result of the COVID-19 restrictions.

Employers must ensure they follow any health directions that apply to how their business must operate during the COVID-19 pandemic, and ensure they meet their obligations under the OHS Act.

A COVIDSAFE PLAN

All businesses that have already opened or are opening in Melbourne must have a COVIDSafe Plan in place. The COVIDSafe Plan focuses on safety, prevention and response in the event that coronavirus is linked to the workplace. The COVIDSafe Plan should be developed in consultation with workers and any relevant health and safety representatives in the business. If a business operates out of multiple locations, a COVIDSafe Plan will need to be developed for each location. The COVIDSafe Plan must set out the following:

The employer’s actions to help prevent the introduction of COVID-19 in the workplace

The level of face covering or personal protective equipment (PPE) required in the workplace

How the employer will prepare for, and respond to, a suspected or confirmed case of COVID-19 in the workplace

How the employer will meet all of the requirements set out by the Victorian government.

High-risk workplaces such as construction, warehousing and distribution need to develop a High Risk COVIDSafe Plan.

Employers do not have to lodge their COVIDSafe Plan with the Victorian government; however, they may be required to provide it to the Department of Health and Human Services (DHHS) or WorkSafe in the event of a confirmed positive case.

Article prepared jointly by Frank Gambera and Bridget Vaughan of McMahon Fearnley Lawyers. Contact them through www.mcmahonfearnley.com.au

EMPLOYER OBLIGATIONS

Preparing a COVIDSafe Plan forms part of the development of a safe system of work, but does not in itself mean that an employer has complied with their duties under the OHS Act and OHS Regulations. During the COVID-19 pandemic, an employer has the following obligations:

Regularly update the business’ COVIDSafe Plan

Ensure that any workers that can work from home are able to do so

Collect records of all workers and any person who attends the work premises for 15 minutes or longer Ensure that there is one worker per 4m² of enclosed workspace or in shared areas Ensure workers do not work across multiple sites. If it is not practicable to limit a worker to only one work site, or if the worker has multiple employers, then the worker must declare this to their employer(s). The employer(s) must maintain a record of all workers who work across multiple work premises If a worker is unwell, send them home and direct them to be tested. They must stay home until they have their result Report any positive cases of coronavirus to the DHHS, WorkSafe, health and safety representatives, and notify your workforce Regularly clean facilities, shared spaces and provide additional cleaning supplies Undertake risk assessments for cleaning and the potential closure of the workplace in certain situations.

EMPLOYEE OBLIGATIONS

It is important to note that employees must also comply with their duties under the OHS Act. Employees have a duty to:

Take reasonable care of their own health and safety in the workplace

Take reasonable care of the health and safety of others in the workplace

Cooperate with their employer/s about any action they take to comply with the OHS Act or the OHS Regulations. The employee duties pursuant to the OHS Act mean that employees must cooperate with any reasonable policies or directions their employer has put in place to reduce the risks to health and safety from COVID-19. This obligation applies to employees even if they are working from home. This means that an employee should not go to work if he/she believe that he/she:

May have been in close contact with a confirmed case of COVID-19

May have contracted COVID-19 Has any of the symptoms of COVID-19, no matter how mild.

Please note that this article is based on the current situation in Victoria. Check with your local authority for the current health directions in your state or territory. Please seek legal advice if you have any doubts regarding your obligations during the COVID-19 pandemic. ■