Returning to the workplace
The federal government have announced a 3 step “roadmap to recovery” plan and State and Territory governments are slowly easing restrictions to their own respective timelines. What this means is that businesses are starting to think about how they may return to their normal physical workplace, albeit with different systems of work and safe work arrangements in place.
For many businesses that have been able to successfully adopt a remote workforce strategy (with employees working from home), there are certainly going to be permanent changes to expectations around how different roles in the business can be performed.
Work from home vs the physical workplace
After being compelled to move swiftly to working from home arrangements in the last couple of months, making a new decision about if, when and how the business should return to their normal physical workplace is not so clear. Many employees may well be happier working from home and would like to see this continue, at least until the end of winter in Australia. Other employees are keen to see more work from home balanced with less time in the office in the future.
A recent survey by Employment Hero covering 1,200 office workers found that almost two in three who have been working from home would like to see this continue, either permanently or semi-permanently.
Employers will need to consider factors such as the employee’s level of productivity at home compared to the physical workplace, the level of supervision they may require, limited informal learning and development and reduced capacity for effective brainstorming and problem-solving – balanced against the realised benefits of flexibility that comes with working from home.
In saying that, nothing can really replicate the buzz and dynamic feel of a physical workplace where a good team culture exists. Many will be itching to get back to this environment.
Create a list of pros and cons from both scenarios – and then give weight to their importance. Before giving up on a remote-first strategy, have a think about whether any improvements to remote working can be made. From recent experience, there are changing perspectives on the effectiveness of online meetings – I think we’ve all learned to adapt in these times and the awkwardness has been replaced by much better etiquette and dialogue.
An employer’s confidence in embracing either permanent or semi-permanent work from home arrangements is enhanced where employees work to measurable outputs – such as a dedicated client portfolio based on revenue, sales performance, customer support volume and overall customer satisfaction. As well, there is no shortage of productivity and communication tools and applications that can make remote collaboration work.
It is recommended that employers assess each role in their business and determine if and how much remote scope exists. It is evident that some roles will not be performed effectively enough if carried out 100% remotely, but there are many which can. By having more roles with 100% remote scope it opens up a much wider talent pool from all over the country (even internationally) to choose from, and the evidence shows that when managed well, engagement will be high and turnover will be low. You can also expect to see some of those key measurable outputs improve over time as a result.
You can watch the recording of our webinar on Returning to the Workplace post COVID-19 hosted by Alana Giddy (Head of HR) & Louise Alagich (Senior HR Partner) on Wednesday 10 June.
Victorian Government Toughens Work From Home Directives
UPDATE: On the 29 May 2020, the Victorian Government has imposed a work from home order to be effective from 1 June 2020 to 30 June 2020 that if employees have been working from home they must continue to do so. This move is aimed at keeping workers off the public transport network.
Developing a COVID-19 safe plan
It will be a requirement for every business in Australia to develop and implement a COVID-19 safe plan where such risks need to be managed. Work, health and safety laws in each State and Territory impose of duty of care on businesses over workers and others entering the workplace to eliminate or control risks to health and safety as far as reasonably practicable:
“Reasonably” = to a moderate or acceptable degree; and
“Practicable” = able to be done or put into practice successfully.
In other words, depending on the likelihood of adverse consequences and their potential severity, if something can be done to eliminate and reduce risk – in consideration of comparable cost of solutions and their availability – it is expected to be done. It will be impossible to eliminate all risks associated with COVID-19, but there is certainly an expectation that any controls, if available to the employer, are adequately implemented.
Safe Work Australia has developed National COVID-19 Safe Work Principles to guide employers through this process. Workplace safety authorities in each State and Territory may also have other codes of practice, checklists and guides available, however, the general principles are the same.
a) Physical/social distancing;
The current advice is that everyone should, so far as reasonably practicable, keep at least 1.5 metres apart from others (outside of their family unit). In addition, in a given space, there should be 4 square metres of space per person where possible.
In a workplace context, it may not always be practicable to maintain the recommended physical/social distancing at all times, e.g. personal care workers, lifting heavy items, etc. Additional control measures may be considered in these circumstances, such as face masks and other personal protective equipment (PPE).
We believe that physical/social distancing will remain in place over the medium term to manage COVID-19 risks, so for many, even if not considering a return to the physical workplace right now, should certainly be thinking about the layout of the workplace and systems of work within their business. This extends to access into and within the workplace, e.g. lifts, facilities, etc. In an office environment, there will also be a rethink on the use of shared spaces, such as meeting rooms. Consideration must also be made to visitors entering the workplace, if applicable.
Workplace safety rules for travelling in lifts have in the last couple of days been watered down to shorten waiting times for workers entering high-rise office towers. Safe Work Australia has now removed an earlier guideline for lift use during the pandemic which said workers should “maintain 1.5 metres distance when travelling in lifts where possible”.
There is a personal responsibility for every individual when it comes to physical/social distancing – at work and outside of work. The responsibility of employers and those who exercise control over the workplace environment is to design and make clear the workplace rules and systems of work so this can be done.
Signage and markings may be required to reinforce and demonstrate the employer’s commitment to physical/social distancing.
b) Health monitoring;
If workers are displaying symptoms of COVID-19 they must not enter the workplace – or if developing symptoms at work they must leave the workplace. This can be as simple as displaying signage to reinforce a message of personal responsibility to workers, but can also extend to measures such as administering temperature checks – although this is likely only a control for highly risk-averse workplaces that choose to err on the side of caution – as they can unreliably increase the number of workers who cannot enter the workplace.
In addition to physical/social distancing, you can also protect workers and others from exposure to COVID-19 and other risks by requiring workers and others to practice good hygiene.
An employer’s role in promoting good hygiene practices extends to making available suitable alcohol-based hand sanitisers, signage to encourage washing hands and coughing or sneezing with their elbow and reducing intentional physical contact, e.g. shaking hands.
An employer and those who exercise control over a workplace environment can protect workers and others from the risk of exposure to COVID-19 by implementing appropriate cleaning and disinfecting measures. Any surfaces that are frequently touched should be prioritised for cleaning, e.g. door handles, counters, phones, EFTPOS and amenities (such as toilets).
e) Personal protective equipment (PPE);
Personal protective equipment (PPE) refers to anything used or worn to minimise risk to health and safety. It is often used to supplement other control measures and includes masks, gloves, eye protection and screens.
For example, where appropriate physical/social distancing cannot be practicably implemented in a particular workplace, screens may be used to separate workers from other workers or customers, or masks may be used for certain tasks.
One of the most important steps with the introduction of safe work procedures is consultation with workers. This is more than a mere exchange of information. Workers must be able to contribute to the decision-making process, not only in appearance but in fact.
Consultation requires that relevant information about safety matters are shared and workers are given a reasonable opportunity to express views and raise issues and contribute to the decision-making process relating to the COVID-19 safe plan.
g) Other considerations;
In addition to providing a safe work environment by implementing controls such as physical/social distancing, hygiene, cleaning and PPE, businesses should also consider before returning to the workplace other additional measures to ensure business continuity in the event of a COVID-19 infection.
Particularly where certain roles can only be performed at the workplace (such as hospitality and retail), some have suggested separating individuals into two groups per role, so that only those in the same group can be rostered on at the same time. This means that if a suspected COVID-19 infection takes place, isolation only affects half the workforce who can perform that role.
For businesses full of professional employees with a traditionally relaxed approach to monitoring the time records of their employees, a system may need to be introduced to keep track of who and when people have entered the workplace, so that any infection risks can be identified and managed appropriately should they occur.
It is also important to balance the COVID-19 safe plan against other employer obligations – such as providing suitable, clean, safe and accessible toilets, drinking water, washing and eating facilities, and secure storage for personal items. Your risk assessment must not eliminate these amenities from the workplace as an easy solution.
Another concern for employees is getting back onto public transport when trains, buses and trams start to fill up with commuters again. Your plan may also need to extend to business travel and site visits that employees may need to carry out in performing their essential duties.
As with any safe work procedures, it is important to review their effectiveness regularly – particularly more so when introducing such controls for the first time. Employees should be encouraged to identify and report any hazards or risks which may not have been adequately addressed in the COVID-19 safe plan.
JobKeeper Payments and Directions
There are many businesses and their employees that are returning from a complete shutdown where no work has been able to be performed for various reasons – i.e. exercising a stand down. With the loosening of restrictions and the existence of the JobKeeper subsidy, many will be in a position to start offering work once again and having all or part of that wage subsidised. It is hoped that, even with limited trade, it will make commercial sense for the business to do so and to re-start the broader economy.
For these employers, they may be looking into JobKeeper Directions for the first time. Importantly, a JobKeeper Direction can be used to partially stand down a worker, as opposed to a full stand down, meaning that the employer can gradually increase the number of hours worked back to the employee’s pre-existing terms. Employers have the duration of the JobKeeper program, currently to the end of September, to use JobKeeper Directions. There are strict rules around how JobKeeper Directions must be provided.
Additionally, an employer may wish to exercise other JobKeeper Directions around the different types of work that employees may perform (outside of their normal job description) upon re-opening the workplace.
Changes to Awards
It is worth noting that the Fair Work Commission has temporarily amended many awards to give employers and employees greater flexibility in dealing with the coronavirus pandemic.
This is particularly important for employers who are unable to exercise JobKeeper Directions. Some examples have been explained in some of our previous blogs:
Q. When returning to the physical workplace what are our obligations in respect of shared spaces such as the kitchen, bathroom and shower? Should they be closed to minimise the risk of COVID-19?
A. Any changes to your workplace to manage COVID-19 risks need to be done in consideration of the various codes of practice that relate to managing the workplace and its amenities which have derived from here. For example, all workplaces must provide clean, safe and accessible toilets, drinking water, washing and eating facilities, and secure storage for personal items.
Showers need only be provided to workers in certain jobs such as mining, firefighting, health care, work in abattoirs, foundry work, welding, and police search and rescue. So it may be a consideration to close a shower area temporarily in an office workplace environment – as much as it may displease many!
Q. If our team can effectively and productively work from home on an ongoing basis - would you recommend that continuing to work from home is in the best interest of our employee’s health & safety?
A. Yes. If the current work from home arrangement is working well for the business and its employees, then there are fewer risks to health and safety by maintaining the status quo rather than entertain a return to the physical workplace.
This is certainly the message coming from health authorities at this time.
Q. How can we appropriately manage social distancing within the hospitality or construction industries?
A. These are 2 examples of industries where it can be more difficult to implement social distancing compared to other office-based industries. Anything that is reasonably practicable for your business is something that should be implemented.
Firstly, adhering to the government directions and guidelines for your industry is the minimum requirement which must be implemented. Additional measures that you can implement for the hospitality industry are things such as having cashless transactions only, limiting table service where possible, and reducing the number of staff which would usually be rostered on.
For the construction industry, consider staggering lunch breaks, start times and finish times to minimise any larger gatherings of workers. Wherever possible, schedule teams of workers to work separately, at different times or on separate parts of the project.
You can also look at the introduction of Personal Protective Equipment (PPE) where usual social distancing requirements can’t be adhered to at all times.
Q. Are there any special considerations for sales reps starting to visit stores again?
A. It is recommended to undertake an individual risk assessment for the role, and then make a decision as to whether or not it is appropriate for the role to commence usual duties. Once the role is ready to commence its usual duties, the business must put safety measures in place to minimise the risks that are identified from the risk assessment.
The safety measures that are implemented should be whatever is reasonably practicable according to your individual business. Make sure you then incorporate these safety measures into your COVID-19 safe plan also.
Q. What happens if one of our employees does not follow the COVID-19 safe plan?
A. Firstly, it is important that the COVID-19 safe plan is driven and upheld by managers to align attitudes and behaviours, i.e. the “safety culture”. Without this, employees may rightly claim that it is merely a piece of paper with no substance.
Assuming the plan is implemented and upheld consistently if an employee fails to comply with the COVID-19 safe plan it would be treated like any other breach of workplace safety policy – and can result in disciplinary action.
Q. Employee testing for COVID-19 before allowing them back into the workplace. How do you do this & how do we handle the same?
A. You can incorporate a requirement for COVID-19 testing into your COVID-19 safe plan or COVID-19 policy, as long as it is reasonably practicable according to your workplace and industry.
However, if an employee refuses to undertake a test, it is not something that an employer can force them to do. If you are going to be requesting employees to be tested, it is important that you have a clear plan in place as to what will happen in the event that an employee refuses testing.
Q. What type of health screening questions can we ask workers as part of our COVD-19 safe plan?
A. Some people are at greater risk of more serious illness with COVID-19:
- Aboriginal and Torres Strait Islander people 50 years and older with one or more chronic medical conditions;
- People 65 years and older with one or more chronic medical conditions;
- People 70 years and older, and
- People with compromised immune systems.
When developing your COVID-19 safe plan you should consider such vulnerable workers as part of your risk assessment.
Specific questions that you may wish to ask all of your workers as part of your ongoing COVID-19 safe plan are generally in relation to whether they may be displaying symptoms of COVID-19 such as signs of fever, coughing, a sore throat, fatigue and/or shortness of breath.
You can encourage and even help facilitate workers to get the flu shot but only in certain industries, such as aged care, can this be prescribed.
Q. Can an employer require an employee to take a temp check? i.e. can an employee refuse the temp check?
A. if it is a reasonable request given the nature of the industry and workplace that the business operates in, then you can have temperature checks included in your COVID-19 safe plan/COVID-19 policy.
However if an employee refuses to have their temperature checked, then they cannot be forced. And the business would then need to have a plan in place for how to handle this (e.g. not allow the employee to work on the premises and have to work remotely).
Q. What if I have concerns about the health and safety of a vulnerable worker returning to the physical workplace?
A. Duty of care comes first. If you suspect a particular employee may be at increased risk and a return to work may be unsafe, you can choose to stand the employee down, with pay, pending a medical clearance.
Q. What guidance is there for vulnerable workers returning to the office? Can we ask employees who are considered vulnerable to seek medical clearance from their GP?
A. As an employer, you have a duty of care to ensure that all employees are safe whilst at work.
Therefore, if you are aware of certain employees who may identify as high risk or are considered vulnerable due to issues such as pre-existing medical conditions, age, etc then it is reasonable that you require those particular employees to seek medical clearance from their treating physicians before coming back to the physical workplace.
Q. How liable are employers should an employee contract COVID-19 in the workplace?
A. Employees who contract COVID-19 in the workplace can be entitled to workers’ compensation, in much the same way as any other illness or injury sustained at work.
In rare cases it might also be possible for an employee to demonstrate that they contracted COVID-19 as a result of an employer breaching their duty of care to the employee (e.g. not taking reasonable steps to safeguard the health of the employee), this could give the employee a rights to take other actions against their employer (a claim in negligence, etc).
Q. Can an employee claim workers compensation if they are infected with COVID-19?
A. Yes. It is possible that an employee may be able to successfully claim workers compensation where they have contracted the coronavirus.
In many cases, it may be very difficult to find a causal link between the illness and the workplace because of the number of different ways that the employee may have come into contact with the virus.
Some jurisdictions (such as NSW) have made the process easier for employees to make a claim by reversing the onus of proof on establishing a link to work – meaning that an employer (or their insurer) would have to prove otherwise.
Q. What if an employee refuses to come to work?
A. If the employer has followed all of the steps outlined in this blog to develop a COVID-19 safe plan in consultation with their workforce, then there is an expectation that employees will return to work as planned. It is first assumed that as a result of following these steps that the general request to return to the workplace is reasonable.
Consideration must be given to an employee’s personal circumstances if they refuse to come to work, specifically whether they are particularly vulnerable or have any other medical conditions or family/carers responsibilities – and whether any reasonable alternative arrangements could be put in place for that worker.
If consideration is not given to these types of special circumstances, employers risk claims being made by employees against them for discrimination or adverse action.
Q. How do we manage employees who are either anxious or stressed about returning to work?
A. We would encourage you not to rush into a decision to return to the physical workplace without canvassing the views of workers and making a sensible decision on the balance of all the facts available. Certainly, rushing this process can not only increase anxiety and stress of workers, but it can also lead to mental health issues which can become a serious workplace problem.
Provide workers with as much information as you can to reassure them of what you are doing to manage COVID-19 risks and point of contact to discuss their concerns. Proactively support workers who you identify to be more at risk of workplace psychological injury and refer workers to appropriate work-related mental health and wellbeing support services, such as an employee assistance program (EAP).
Q. Can I make my employees download and use the COVIDSafe app as a part of our COVID-19 safe plan?
A. No. Employers may encourage employees to download and use the COVIDSafe app, however, it is prohibited from compelling an employee to do so.
Q. What if it is a company phone, can we get staff to download the COVIDSafe app?
A. Although it is a company phone, the data that the COVIDSafe app collects is still related specifically to the employee and therefore, you are not able to enforce that employee download and use the app. You are however able to ask/encourage that they consider using it.
Q. How do you handle a positive COVID-19 case at the workplace and how do you break the news to other colleagues, press etc.
A. Your response to a positive COVID-19 case will depend on your specific workplace and your industry so its recommended to undertake a risk assessment of your workplace in order to determine what the most appropriate response will be.
We recommend that you have a COVID-19 policy in place which formally outlines the process that will take place if there is a positive case of COVID-19 in your workplace. This will ensure that all employees are aware of what the process will be and what is expected of them.
Your COVID-19 policy should include how a positive case will be communicated to employees, what will happen with the physical workplace after a positive case, and support measures that will be provided to employees. It’s important to consider confidentiality for the infected employee and ensure that their privacy is protected during this process.
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About Employment Innovations
Employment Innovations is one of Australia’s leading providers of employment services designed to increase productivity and ensure compliance. Its services and solutions include all the tools that every Australian small to medium sized employer needs – including workplace advice, legal services, payroll solutions, migration, human resource management and HR software.
The information provided in these blog articles is general in nature and is not intended to substitute for professional advice. If you are unsure about how this information applies to your specific situation we recommend you contact Employment Innovations for advice.
This article was originally published on 25 May 2020; updates have been made following the advice of State & Federal governments & health authorities. Last updated 29 May 2020.