13 May MANAGING THE RETURN TO WORK
As restrictions continue to lift, employers are beginning to tell employees that it is time to return to the workplace. But what if an employee refuses to return to work?
There are many businesses which require their employees to be physically present in the workplace to operate. In such circumstances, it is clear that employees will be required to get back to work when the restrictions pertaining to that business are lifted, subject to the employer developing a “COVID Safe plan” and complying with relevant directives (discussed further below).
For some businesses (particularly those who have moved their staff to working from home arrangements) making a decision about when they should return their staff to work is not so clear. Many of their employees may be happier working from home than in the workplace and want to extend the period they work from home as long as possible or not return to the workplace at all and continue to work from home after the COVID-19 pandemic is over.
Can you direct an employee to return to work?
The answer to this question depends on the circumstances. The key question employers will need to consider is whether the employee needs to attend the workplace to perform their duties or if they can do this remotely.
Employers should also consider factors such as, the employee’s level of productivity at home compared to in the workplace and the level of supervision they require balanced against any special circumstances that apply to any of their employees, e.g. those who may have a disability or carer’s responsibilities. If consideration is not given to these types of special circumstances, employers risk claims being made by employees against them for discrimination or a general protections claim.
Further consideration should also be given to employee’s travel arrangements and whether the restrictions in place will affect how the employees get to and from work and what kind of health risk they are exposed to in doing so.
If the request for an employee to return to work is reasonable and in line with directives, then there is no issue with directing an employee to return to work. If an employee refuses to return to work, then this may be considered a failure to follow a reasonable direction and could result in disciplinary action being taken against them by their employer.
Keep in mind that safety is paramount in the current circumstances we face.
You need to make sure any return to work is safe
In accordance with Government requirements, employers will need to ensure that a “COVID Safe plan” has been developed. This includes physical distancing, ensuring there are systems in place to ensure effective hygiene, cleaning and health monitoring (including for if a COVID-19 case presents itself in the workplace), complying with the four-square metre rule in some cases and other matters.
Example – Queensland
In Queensland, the Government has attended to publish COVID Safe checklists for businesses that provide:
1. dining-in for customers, such as restaurants, cafes, pubs, RSLs, clubs, and hotels (food courts remain closed); and
2. beauty therapy services.
If you do not offer these services, you do not need to complete a checklist. The Government has advised that all businesses should, however, be following the work health and safety guidelines which can be accessed here: https://www.worksafe.qld.gov.au/coronavirus/workplace-risk-management-b/_recache
These guidelines include advice on implementing the following measures to keep workers safe and stop the spread of COVID-19:
“1. Work from home where possible.
2. Implement and promote high order controls to complement hygiene practices (e.g. social distancing such as work from home where possible, create separate walkways through worksites, limit numbers of people in lunch or crib rooms or install barriers and screens).
3. Equally as important, implement good hygiene practices including hand hygiene and workplace cleaning – employers must provide sufficient cleaning and disinfection supplies and equipment, or engage a suitable cleaning service.
4. Use personal protective equipment (PPE) where necessary and in accordance with the relevant State and National guidelines.
5. Consider industry specific advice for higher risk workplaces or industries where the health of workers or people who are at the workplace are at higher risk (e.g. residential aged care, healthcare and correctional facilities).
6. Manage psycho-social risks for workers.
7. Communicate, train and supervise workers on workplace measures to address COVID-19.”
They also state to:
“Put in place a plan to respond to COVID-19 and to any directives issued by Queensland Health—this should include infection prevention and control policies and procedures, safe systems of work, how workers and their HSRs will be consulted, and how you will monitor and update your plan as public health information changes. Consult with workers on the plan and display it clearly in the workplace. Consultation with workers, and, where applicable their representative, is required at each step of the risk management process.”
The Queensland Government has further advised of the following key points for businesses requiring COVID Safe checklists:
1. You are required to complete and display the COVID Safe checklist before trading once Stage 1 Easing of Restrictions commence on 11.59pm on 15 May 2020.
2. Draft COVID Safe checklists are provided on the following site: https://www.qld.gov.au/covid-19/government-actions/roadmap-to-easing-queenslands-restrictions. Final checklists will be published by Wednesday 13 May 2020.
3. These checklists tell you what you need to do if you are a business in the above two categories to be COVID Safe. The checklists include input resulting from consultation with key industry stakeholders.
4. You must complete the Checklist to ensure you comply with essential health requirements to enable you to open and provide a safe environment for your customers and your staff.
5. You must complete, sign and display the checklist in a prominent, visible location at your business premises.
6. You are not required to submit this checklist to Queensland Health, however a relevant enforcement officer can check compliance at any time and/or may ask for a copy of the signed checklist.
The Queensland Government has advised more information will soon be provided around the COVID Safe plans. The Government has advised that these will be industry best practice and demonstrate that businesses in compliance with the plan have created a safe environment which may allow greater flexibility in the application of the restrictions.
Other states and territories are implementing or have already implemented similar checklists/plan arrangements, for example the Northern Territory has COVID-19 Safety Plan Checklists now available which can be completed and submitted online.
As outlined in our previous articles Safe Work Australia also has numerous resources for employers to use during this time: https://www.safeworkaustralia.gov.au/collection/covid-19-resource-kit.
If you require advice specific to your business on managing the return to work, please contact the team at HR Law for assistance.