Individuals and businesses across Australia have been anxiously waiting for lockdowns to end.
Many in the corporate world are more than ready to return to the office, while others have enjoyed the flexibility of working from home. An increasing number of people are predicting the end of the “traditional workplace”.
It feels like there are new rules, roadmaps and restrictions every day that change at any time. As an employer or employee, it’s hard to keep track.
In this article, we cover what businesses need to know about reopening safely and lawfully.
When can workplaces and offices reopen?
This depends on where you live. Many states are not in lockdown and workers have already returned to offices. Additionally, some parts of regional NSW and regional Victoria are not under stay-at-home orders.
For Melbourne, Sydney and regional areas in Victoria and NSW which are currently under lockdown, restrictions will gradually be eased when 70% of adults are fully vaccinated, with more freedoms available at 80%. NSW reached its “freedom day”, with more than 70% of adults fully vaccinated on 11 October, and will reach 80% in mid- or late-October. Victoria is eyeing 26 October as the 70% mark, and 5 November as the 80% mark.
NSW and Victorian authorities advise that at 80%, fully vaccinated workers can choose to return to offices.
NSW and Victoria have outlined that several establishments, such as gyms, swimming pools, entertainment venues, hairdressers, pubs and restaurants (for dine-in) can open to fully vaccinated people only, at least until late November or December.
Can employers require employees to return to the workplace?
Like most issues in workplace health and safety (WHS) law, employers can direct employees to return to the workplace, work their normal hours or work under certain conditions if the direction is “lawful and reasonable.”
State health authorities emphasise that for fully vaccinated employees, it’s normally their choice to return to work or not – but unvaccinated people should stay home. Employers can also end any “stand downs” at this time.
It’s unlikely that forcing everyone to return to the physical workplace will be reasonable, when they can work from home. The Fair Work Ombudsman, Australia’s workplace regulator, has emphasised that employers should continue offering “alternative working arrangements” during the pandemic.
In any case, giving employees the option to work from home where possible is highly encouraged, to increase flexibility and boost workforce morale.
If employers are considering changing their employees’ working hours or duties to support adjustments to the workplace – for example, staggering employees’ start and finish times, or switching someone from part-time to full-time – they’ll need to follow the provisions in any applicable award, agreement or employment contract.
Finally, several employees may be rightfully anxious about returning to the workplace. Employers should talk to employees and genuinely address their concerns – their wellbeing is paramount. Fair Work has resources on addressing COVID-19-related workplace issues.
Can employees with health concerns or caring duties decide to work from home?
Anyone with COVID-19 symptoms should not go to work and should let their employer know as soon as possible.
In some circumstances, employees may lawfully refuse to return to the physical workplace because of a reasonable concern about their health and safety. This might be because they have pre-existing health issues, or because they care for someone (e.g. a child or an immunocompromised parent) who is susceptible to COVID-19 and its effects.
Some employees may want to stay home as a precaution (e.g. their area sees a spike in COVID-19 cases, or they rely on public transport to get to work). They will have to make an arrangement with their employer but can face disciplinary action if they refuse a reasonable direction to work.
What extra precautions do employers need to take in their workplaces post-lockdown?
Employers have a legal duty to provide a safe workplace for their employees.
A major priority for employers before reopening is to create a COVIDSafe plan, detailing how they will adapt their workplace with health and safety in mind. This is a legal requirement in some states and industries. Safe Work Australia has a small business COVID-19 planning tool which can help.
Workplaces should follow social distancing rules, limit physical contact and increase hygiene and control measures (e.g. wearing masks in common areas, asking people to sanitise their hands upon entry and providing PPE).
Employers must ensure they clearly communicate with employees on changes to the workplace – in some instances, it may be a legal requirement to consult employees.
Several employees may be experiencing mental health issues due to COVID-19, especially if they or a family member are personally impacted. Employers can direct employees to Beyond Blue’s website dedicated to dealing with coronavirus and their 24-hour phone counselling service.
And employers should regularly update risk management plans to assess when it’s safe to return, and review contingency plans if they’re required to work from home again.
Can employers require employees to be vaccinated before they return to work?
GRC Solutions has covered this important area of WHS law in a previous article.
In short, it depends on the nature of each workplace and the employee’s circumstances (including the risks associated with their work) – that is, if employees are not already required by law.
Several prominent companies in Australia, such as Qantas, SPC and Deloitte, have mandated vaccinations for certain staff.
But even if employers can’t make vaccinations compulsory, unvaccinated employees will still be barred under state health advice from returning to shared offices for the near future.
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