Just when we thought we had come to grips with how to manage the pandemic, Omicron reached Australian shores and has brought with it an opportunity to put into play the learnings of the past 18 months.
Here Hilary Searing and Sophie Orton from Clayton Utz, Workplace Relations, Employment and Safety practice answer commonly asked questions from employers who are trying to navigate Omicron in the workplace.
From workplace vaccination mandates to risk assessments and beyond to future variants, there are many considerations affecting how employers should consult and deal with workers. Below are some of the most commonly asked questions from employers navigating the current outbreak.
Does my organisation really need a risk assessment / should we update our risk assessments because of Omicron?
All organisations must assess the risk to their workers that COVID-19 brings and implement controls to manage those risks. A documented risk assessment is one of the easiest ways to do this (and to be able to evidence that you have done so if you ever needed to).
As Omicron has significantly increased the number of cases in the community, and changed the risk profile for workers and organisations, we recommend you review your risk assessments to take into consideration the changed nature of the risk Omicron brings, and assess whether the controls you have put in place to manage these risks are still appropriate and effective.
Something a number of our clients have found helpful is to develop a risk assessment with trigger points for different controls that can be adapted quickly and scaled up or down depending on the particular risk of COVID-19 that point in time.
An organisation's COVID-19 risk assessment should not simply be a 'set and forget' but a living document that is constantly engaged with, reviewed and amended. Many organisations have also completed a COVID-19 Safe Plan (and some were required to by law in order to open) and your risk assessments can play an important role in making sure these plans appropriately address your risks.
Having a well drafted risk assessment will also assist organisations to roll out considered vaccination, mask wearing or RAT testing requirements, based off the risks to workers and the control measures that are available to be put in place.
The organisation would like to make COVID-19 vaccinations mandatory for our workers. Is it too late?
No, it is not too late. We recommend organisations considering a mandatory vaccination policy to conduct a risk assessment and obtain legal advice first as whether or not you can mandate the vaccination is dependent on a number of factors. It is not a one size fits all. However, given the increased risks that Omicron has brought, this is certainly something a number of organisations are considering as a way to minimise the risk to their workers.
The recent decision in Construction, Forestry, Maritime, Mining and Energy Union v Mt Arthur Coal Pty Ltd T/A Mt Arthur Coal  FWCFB 6059 has emphasised that it is crucial for organisations to consult with their employees prior to undertaking any COVID-19 vaccination policy.
Employers have a duty to consult workers when making a decision about work health or safety which will, or will likely, directly affect its workers. This duty applies prior to making a decision, and includes consulting with all workers who will be affected by the decision regardless of whether they are covered by an enterprise agreement or common law contract.
It is therefore necessary for employers, prior to making a decision whether to mandate the vaccination, to ensure:
- it shares the relevant information about the proposed vaccination mandate with workers impacted by the decision; and
- that workers be given a reasonable opportunity -
- to express their views and to raise work health or safety issues in relation to the proposed vaccination mandate; and
- to contribute to the decision-making process relating to the proposed vaccination mandate;
- that the views of workers are taken into account; and
- that workers are advised of the outcome of the consultation in a timely way.
In addition to these pre-decision consultation obligations, employers must follow consultation obligations under any applicable industrial instruments (e.g. enterprise agreements, employment contracts and / or policies) for those employees covered by these instruments.
Undertaking this consultation does not give employees the right of veto, or take away managerial prerogative to make a final decision following the consultation process, but allows workers the opportunity to have a say, raise any concerns and have input into the process. It can also result in greater commitment to the decision (e.g. a mandatory vaccination policy) as by participating in the consultation process, workers can better understand the decision making.
What can my organisation do to manage the Omicron outbreak and prepare for future variants?
There are several things that Australian organisations can do.
Firstly, implement a company-wide (national) COVID-19 policy that provides your employees with certainty and security. The policy should address things like what control measures the organisation has in place (e.g. vaccinations, mask wearing, social distancing, increased cleaning etc.), explain when employees are entitled to personal / carer's leave, provide for any additional leave such as to obtain a vaccination / booster, what will occur if an employee tests positive and workplace entry requirements (such as negative RATs or no symptoms).
The control measures should be supported by the organisation's risk assessment, which is regularly reviewed, and contains scalable controls that can be increased or decreased as required depending on the current level of community transmission / risk and does not require the organisation to make constant on the run decisions as the risks change.
Secondly, organisations should stay up-to-date with the state and territory government mandates regarding vaccination, isolation and travel. For organisations whose industries are impacted by the mandates, you may also consider lobbying the government for change as we have seen recently occur in the food distribution sector.
Thirdly, organisations should ensure they are able to quickly pivot to different work arrangements to allow them to continue operating during outbreaks / increased times of risk. For example, many organisations default to a working from home mandate for office / corporate staff when community transmission reaches a certain level. Other organisations split their staff into two rosters (e.g. Roster A and Roster B) and have the teams alternate between attending the workplace or allocate the teams to different areas with separate bathrooms and kitchen facilities to reduce the operational impact of losing all of your key staff due to a positive COVID-19 case.
Finally, Australian organisations should consider how organisations overseas, in a similar industry to theirs, are dealing with the pandemic. Given Australia’s geographical location and isolation from the rest of the world, many new variants and outbreaks are likely to happen abroad before reaching Australian shores. Several multinationals were able to predict what would happen here and be ahead of the game, such as ordering rapid antigen tests because they implemented the learnings from their overseas stores. By reviewing what those overseas are doing, organisations can take a more proactive approach.
How should my organisation manage staff shortages? It seems like everyone is either unwell or a close contact.
Many Australian organisations are currently experiencing staff shortages. To best assist organisations in managing these staff shortages, we recommend:
- subject of course to any specific State or Territory requirements, implementing a clear pathway to returning to work after testing positive or being a close contact including negative RATs, PCR tests, monitoring for symptoms and not having staff attend at work who have symptoms;
- consider flexible working arrangements for close contacts who are required to isolate but are otherwise fit to perform their duties;
- ensure your risk assessment and controls are effective and that you consider control measures that are effective in slowing the spread of the virus in the workplace such as mask wearing (even if there are no government orders in place for your industry);
- consider requiring employees that can work from home to do so on a temporary and interim basis (slowing the risk of the spread of infection can help with consistency and productivity in the short term); and
- consider employing casuals through labour hire for a brief period and find ways to retain and reward existing staff.
Should my organisation implement a RAT regime to test employees routinely or after being a positive case or a close contact?
A routine RAT testing regime is certainly something that an organisation can consider as part of its ongoing COVID-19 controls, particularly in circumstances where they are responding to a COVID-19 outbreak. This can help to identity the extent of transmission in workplace settings.
However, other than in the case of outbreaks and certain high-risk industries, a RAT testing regime has not been routinely recommended by the Australian Health Protection Principal Committee.
If organisations wish to implement workplace screening using RATs, they should complete a risk assessment demonstrating that RATs are one control measure, among others, that are required to reduce the risk of COVID-19 in their workplace.
They would be responsible for procuring their own test kits, in line with the TGA requirements and, where applicable, are expected to cover the cost of implementing testing on site at workplaces. They would also need to consult with workers in regard to the RAT testing regime (as it is a decision about work health or safety which will, or will likely, directly affect its workers - see discussion at 2 above).
Lastly, organisations will need to comply with the Privacy Act 1988 (Cth) (Privacy Act) (if applicable to them) when inspecting or collecting the RAT test results, or collecting vaccination information.
Whether an organisation wants proof of a negative result after an employee has tested positive or is a close contact, is more targeted. Many organisations are relying on the relevant State or Territory COVID-19 isolation rules which dictate when individuals are allowed out of isolation. For example, some States require individuals to test negative on a RAT in order to be allowed out of isolation and in other States, an individual's isolation period ends when they have no symptoms. Workplaces are incorporating these rules into their company policies in different ways. Some are simply asking employees to confirm that they have not tested positive in the last 7 days before entering the workplace, but will not necessarily ask for proof by way of a RAT or PCR test (noting the privacy risks outlined above). It is important for organisations to carefully consider their own risks, and what level of controls are appropriate to manage these in their workplace.
What do you predict will be the next workplace issue for organisations during the pandemic?
We predict organisations will see the following issues over the next six months:
- increased instances of employees claiming they have COVID-19 to access personal or unpaid leave;
- employees faking COVID-19 vaccination certificates in order to be able to return to their workplace where a mandatory vaccination policy applies;
- employers facing increasing privacy law challenges in respect of their collection of medical information including vaccine information and RAT results;
- more unfair dismissal and / or adverse action claims in the event an employee's employment is terminated if they refuse to obtain vaccination or boosters contrary to an organisation's policies;
- employees requiring employers to provide them with RATs;
- employees seeking to work from home on a prolonged basis / not return to the workplace with the converse need by employers to drive the return to the physical office;
- an increase in claims or prolonged absence from the workforce where employees have developed long COVID-19 symptoms; and
- increasing levels of "COVID fatigue" where organisations, and particularly senior executives, have had to deal with these issues for over two years to date and will continue to need to do so.
Employers should take steps to proactively manage these risks by making sure:
- they stay up-to-date with constantly evolving State and Federal legislative changes, government guidelines and policy;
- they have robust, defensible policies in place, supported by risk assessments, in the event they mandate the vaccination, or implement a RAT regime;
- they ensure they understand and comply with any consultation obligations;
- they ensure they comply with any privacy obligations in regard to the collection and storage of sensitive health information;
- they provide employees certainty and security around the approach the organisation is taking to manage its COVID-19 risks; and
- they take steps to support all of their employees, and their senior executives, to reduce the risk of COVID-19 fatigue and burn out.
This material is produced by Clayton Utz, Lawyers. It is intended to provide general information in summary form on legal topics, current at the time of first publication. The contents do not constitute legal advice and should not be relied upon as such. Formal legal advice should be sought in particular matters.
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