My staff do not want to return to work – what are my rights?

After months of shutdown for businesses across Australia and New Zealand, easing restrictions for some regions means many employees are being called back into the workplace. While some are keen to return to ‘business as usual’, others are concerned about their own wellbeing.

We spoke to David Kiel, employment law expert and solicitor at DLA Piper, about your rights as an employer and the type of policies you should be creating prior to staff returning to the workplace.

Do my employees have the right to refuse returning to work?

While some industries have seen little disruption from COVID-19, others haven’t been so lucky. The hospitality industry, for example, has been hit hard by the pandemic, and in order to conduct business they need staff to be physically present. So with restrictions lifting across much of Australia and New Zealand, do employees have the legal right to refuse going back to the workplace?

“Ultimately it will depend on all the circumstances, including any terms and conditions of employment,” David says.

The reasons for refusing to return to work sway heavily towards health concerns, especially for those in industries where remote work is impossible. Hospitality, manufacturing and retail, for example, require regular face-to-face interaction with co-workers and customers, and many staff are worried about the risk of catching COVID-19 while at work. There are also other factors like childcare fees resuming, and in some instances the lawyers are being called in to force workers back into the office.

“In terms of an employee who’s actually been performing work from home throughout the crisis but doesn’t want to return to the workplace, it’s going to depend on employment terms and conditions, and why they’re concerned about returning.

“If there are genuine health and safety concerns, those certainly can be raised. And in some circumstances, employees might have the right to refuse to carry out work or otherwise have the right to stop work where there’s a serious hazard. So for example, if they thought there was a serious health hazard in relation to the workplace, there may be a right under occupational health and safety (OH&S) legislation to not work in those circumstances.”

Because those with certain pre-existing conditions and co-morbidities are at a much higher risk of serious illness or death if they get COVID-19, it’s understandable that those workers will want to be more careful about returning to their workplace. There is also a heightened risk according to the job type, with more ‘at-risk’ positions like care workers, security guards and police, for example, more likely to be exposed to a greater number of people in their day-to-day activities.

Whilst there is usually no absolute right to work from home, certain employees who have worked more than 12 months may have the right to request flexible workplace arrangements (which can include working at home).

What are my legal obligations as an employer?

Your duties as an employer have not loosened because of COVID-19 – in fact, with increased attention from staff returning to work, you may be under even greater scrutiny if you fail to uphold by your obligations, such as OH&S duties.

Under state and territory OH&S legislation, employers are generally required to provide and maintain, as far as is practicable, a working environment where their workers are not exposed to health or safety risks. This means that an employer must provide a safe workplace and a safe system of work (including where an employee regularly works from home).

Whilst employers’ OH&S duties have not changed, there is now clearer guidance around how businesses must operate in light of COVID-19 in order to discharge their duties, and guidance is available from both the Department of Health and Safe Work Australia. Inclusions cover everything from social-distancing requirements to sanitisation, not allowing ill staff to come into the workplace, emergency plans to respond to possible COVID-19 exposure and much more advice on how to stop the spread of COVID-19. The information is constantly being updated, and in mid-July Victoria mandated masks for everyone when outside, including guidance on how that fits into the workplace.

David says it’s also essential to organise consultations with staff before they return to the workplace. This is so everyone can be on the same page regarding how work activities are changing because of COVID-19, what safety and health precautions are being taken (e.g. disinfecting offices, hand sanitiser at everyone’s stations, etc.), and whether there is an opportunity to keep working remotely for the foreseeable future. Communication is absolutely necessary here, and consultation will allow those with genuine concerns to raise them.

“Where a return is contemplated, employers will likely have consultation obligations under OH&S legislation, and potentially under applicable modern awards, in respect to the changes in their specific arrangements. So there must be a degree of consultation with employees and any health and safety representatives about COVID-19, the proposed arrangements in which the workplace return will occur, and what policies and procedures will be adopted before the return.”

“The legislation often provides for certain dispute-resolution procedures where there are safety concerns. Essentially, this results in the employer having to develop a well-considered return-to-work plan.”

What policies should I be implementing in a post-COVID world?

There’s no one-size-fits-all rule for returning to work, and David reiterates that communication is key – consultations with staff should occur well before they return to the workplace, and a number of policies should be implemented to keep employees safe and comfortable.

“Any policies need to address the risks, in accordance with the obligations to provide a safe workplace. The really important things to consider include physical distancing, hand washing, hygiene and cleaning. Other policies and procedures which may be useful to consider implementing include those dealing with flexible working arrangements and response and business continuity plans where suspected exposure occurs.”

“Then obviously you need to make sure there is a policy in place that clearly outlines what to do to ensure those who are attending the workplace aren’t presenting with flu-like symptoms.”

While every business should develop its own policy that aligns with its standard processes, staff headcount and interactions with customers, you can find some helpful suggestions from Safe Work Australia. To help get you started, think about creating the policy in three key sections:

  • Conduct a risk assessment: Do a thorough audit of your organisation to find out if there are any gaps in your current health and safety policy, or if COVID-19 has made minor risks much more dangerous. In hospitality, for example, you will need to outline how many people are allowed in your business at any one time, and whether or not you will only offer takeaway service.
  • Physical distancing rules: The government’s social distancing rules mean people must stay 1.5 metres apart from one another, and this remains necessary in the workplace too. If your building has a lift, for example, you’ll need to create a policy that outlines how many people are allowed in at one time, or encourage staff to use the stairs instead.
  • Hygiene and cleaning at work: You’ll need to think about customer hygiene as well as your staff. That may mean setting up free hand sanitiser stations around the workplace, or disinfecting surfaces and objects that are regularly used by more than one person.

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