COVID-19 related occupational health and safety regulations
On 28 July 2020, the new COVID-19 related occupational health and safety regulations were passed in Victoria. These regulations now require employers (and the self employed) in Victoria to notify WorkSafe Victoria when the employer becomes aware of a worker who has symptoms and / or has received a confirmed COVID-19 diagnosis, and has attended the employer's workplace within 14 days' of that individual having symptoms or receiving a positive test result.
Employers who fail to comply with the new regulations face a maximum fine of nearly $200,000 and potential prosecution.
At the direction of the Victorian Chief Health Officer (CHO), residents of Metropolitan Melbourne and Mitchell Shire now must wear a face covering unless a relevant exception applies to an individual.
The CHO has directed that employers must take reasonable steps to ensure that employees wear a face covering at all times within the workplace.
Employers should also provide information, instruction, training and supervision to employees and contractors on:
- when face masks and / or face coverings are to be worn;
- how to put on and wear face masks and / or face coverings correctly to ensure they are effective;
- how long face masks and / or face coverings can be worn;
- how to remove face masks and / or face coverings safely, including changing masks during shifts; and
- how to safely store and wash reusable face masks and / or face coverings or dispose of single use masks.
To avoid the ramifications of non-compliance, employers must ensure they have a COVID-19 management plan in place, particularly in advance of employees returning to the workplace following a period of remote working.
A common question we receive is whether employers can direct employees to be tested for COVID-19?
Earlier this year the Fair Work Commission (FWC) upheld the dismissal of an employee after they refused the lawful and reasonable direction issued by his employer to complete a COVID-19 survey in relation to their recent and upcoming travel plans (Kieran Knight v One Key resources (Mining) Pty Ltd T/A One Key Resources  FWC 3324). The reason for the employer's direction was to ascertain whether any of its employees had travelled (or intended to travel) to high or moderate risk countries from 1 February 2020 to 6 March 2020). Our colleague, Mark Curran recently provided excellent insight into the case, which can be viewed here: COVID-19 Direction Reasonable and Lawful.
Given the employee's employment agreement required him to follow all lawful and reasonable directions of the employer, and the fact that the employer followed a proper process in issuing the lawful and reasonable direction, the termination was upheld.
It is important that if employers wish to direct employees to take a COVID-19 test, they have in place employment agreements which provide the ability for the employer to make a lawful and reasonable direction.
Watch this space
We are waiting to learn of the FWC Full Bench proposal regarding whether to grant paid pandemic leave for workers covered by the Aged Care Award 2010, Nurses Award 2010 and Health Professionals and Support Services Award 2010.
Schedule X, which was inserted into the Retail Industry Award 2010 is set to expire on 30 September 2020. The FWC is currently deciding whether to once again extend the Schedule for a further period, in order to continue providing employees with access to unpaid pandemic leave and annual leave at half pay.
If you require further information or have any queries in relation to this legal update, please contact George Haros, Christina Tsakiris or a member of our Employment and Safety team.
We would like to acknowledge the contributions of Grant Klemm to this article.