COVID-19 and the Work Health and Safety Act 2020

Part 3: Employee duties and responsibilities

By Peter Lochore, Barrister, Francis Burt Chambers.

This article looks at employee duties and responsibilities for work health and safety, using COVID-19 examples. It looks at what:

(a) duties workers owe under the Work Health and Safety Act 2020 (WA) (WHS Act); and

(b) questions workers might ask their employers about work health and safety topics.

Workers’ duties

Everyone is responsible for his or her own safety. This personal responsibility is set out in s 28 of the WHS Act, as follows: While at work, a worker must –

(a) take reasonable care for the worker’s own health and safety;

(b) take reasonable care that the worker’s acts or omissions do not adversely affect the health and safety of other persons; and

(c) comply, so far as the worker is reasonably able, with any reasonable instruction that is given by the person conducting the business or undertaking to allow the person to comply with this Act; and

(d) cooperate with any reasonable policy or procedure of the person conducting the business or undertaking relating to health at the workplace that has been notified to workers.

If more than one person has a duty relating to the same matter under the WHS Act, each person with the duty must, so far as is reasonably practicable consult, cooperate and coordinate activities with all other persons who have a duty in relation to the same matter. 1

Aspects of workers’ duties relating to COVID-19

Section 28 self-evidently requires every person to take responsibility for her or his own safety.

For instance, if you have a COVID-19 symptom or you are a close contact of an infected person, your duty requires you to consider the any steps you should take to stop the spread of airborne disease. It is prudent to consider public health guidance as well as the instructions, policies and procedures of your employer. WA Health continues to recommend that close contacts and those with COVID symptoms take a rapid antigen test. Plus, those with COVID-19 symptoms are urged to stay home until symptoms resolve. However, if you are a close contact without symptoms the public health advice is to check with your employer. 2 You may also plan to wear a mask to protect others.

If you test positive, the current health advice recommends that you to stay home until your symptoms reside. 3 You are also urged to tell anyone you have had close contact with over the previous 2 days that you have COVID, as well as to register your positive test result. 4 Along with the health advice, you need to consider the instructions, policies and procedures of your employer. What constitutes taking reasonable care will vary depending on the circumstances. Relevant matters to consider will include any symptoms, the degree of contact exposure with sick people, the nature of your workplace, the nature of any instruction given and the content of your workplace’s policies.

If, by failing to take reasonable care, you expose yourself or others to being infected with COVID-19 at your workplace you may expose yourself to prosecution. For example, on 26 October 2022 a nurse in Victoria was fined $25,000 after working in aged care while positive for COVID-19. The fine was imposed after she pleaded guilty to a single charge of failing, as an employee, to take reasonable care for the health and safety of persons at her workplace. 5 Two points of distinction are important to keep front of mind in considering this example:

(i) the offending conduct was in July 2020, while the public health emergency was in full swing; and

(ii) the workplace was aged care, a context that even now remains “higher-risk” and where stronger infection control measures set a higher expectation for employees. 6 While a prosecution on similar facts is unlikely given these differences, the case still serves as a salutary reminder of the obligation we each have to care for the health and safety for others at work.

Shared duties

Across society there is a shared duty under s 34 of the Public Health Act 2016 (WA) for every person to take all reasonable and practicable steps to minimise any harm to public health that might foreseeably result from anything done or omitted to be done by the person.

At work, you and your employer are jointly responsible for the safety of the workplace, so far as is practicable. You must play your part to keep the workplace safe. The flipside though, is that your employer must:

(a) consult you on all applicable policies and procedures;

(b) cooperate with you on implementing all applicable policies and procedures; and

(c) coordinate with you and all others who owe overlapping duties.

For example, if your employer has a policy that requires the use of HEPA filter air purifiers – everyone using the space shares the duty to turn them on. Similarly, if your workplace policy requires that meetings in smaller rooms must be conducted with an open door, everyone shares the duty to open the door if someone else closes it during a meeting.

Questions you may decide to ask your employer

As workplace safety is everyone’s responsibility, you may need to ask questions of your employer to clarify how you and others should act in particular circumstances.

Should you attend work if you might be infectious with an airborne disease?

From early in 2020 until 14 October 2022 it was clear that no worker should attend a workplace while positive to COVID-19, except if they came within declared exemptions. But the public health orders mandating isolation have now been revoked. Still, Safe Work Australia advises that the removal of mandatory isolation does not impact on the work, health and safety duties in the workplace. 7

For most workplaces, the basic rule is if you have COVID-19 symptoms or you are feeling unwell and someone in your household tested positive to COVID-19, your attendance at work creates a risk of airborne disease so you should stay away. However, this is not the universal approach. For some workplaces it may be feasible to use a range of alternate controls that enable you to attend work and still provide a sufficient measure of protection to other workers. Though any policy will need to account for staff members with special vulnerabilities (such as the elderly or immuno-compromised). If you are unsure, you should seek guidance from your employer as to when you should, and should not, attend the workplace while potentially infectious.

Questions:

1. Have you familiarised yourself with your workplace policy on COVID-19/airborne disease risk?

2. If your workplace has not yet updated its policies following the lifting of the public health orders, will you ask your employer: a. what new policy is planned?; and b. what process is planned is for workers to be consulted about the policy?

Will your workplace permit non-worker visitors with

symptoms that might be COVID-19?

Any workplace that receives members of the public as visitors, which most law firms will, ought to have a policy for visitors with flu-like symptoms. Staff need to know what such a policy is, to know how to advise visitors.

For instance, are visitors with flu-like symptoms welcome in all circumstances? Are they asked not to attend? Are they asked to complete a declaration or otherwise attest that they have received a negative result on a test approved by the Therapeutic Goods Administration? Will they be required to mask? If you don’t know the answers, it may be prudent to seek guidance from your employer. Once a policy is set, then it needs to be communicated clearly to potential visitors. There multiple ways a policy may be communicated. It might be through posters or signs. In other cases, notices will be placed on a business’ website (for example, Francis Burt Chambers’ visitor policy is on its website). 8

Working from home policy

Is work from home permitted? If so, under what circumstances?

Is working from home is something that you may want to do? For instance, if your child or spouse is ill, you have been a close contact of a COVID-positive case but have no symptoms, or you have only mild symptoms? If you haven’t planned for the possibility of working from home, and obtained the relevant permissions in advance, you may be forced to take sick leave instead. You could then miss work opportunities.

For some lawyers, working from home in 2020 was a terrible experience. Some had no suitable workspace. Other workers faced difficulty keeping information confidential and secure when trying to work from home. Yet others had no workspace separate from their children. Junior lawyers had reduced supervision. Proactive investigation and planning may fix some of these issues.

Employers have to consider not only the physical safety of a home workplace (from immediate trip hazards to cumulative hazards from poor seating or desks) but also the psychosocial hazards. Worksafe WA’s Code of Practice for “Psychological hazards in the workplace” identifies poor workplace policies and those developed with no or limited consultation with workers as a psychosocial hazard. 9 The Code of Practice identifies remote work and isolated work as additional risk factors for psychosocial hazards. If your employer pushes you to work from home despite limited consultation, you may wish to refer your employer to the Code of Practice for “Psychological hazards in the workplace”.

I suggest that flexibility will be needed to permit working from home in some circumstances, but without public health orders urging it, employers will rarely be entitled to insist on it.

End Notes

1 WHS Act, s 46.

2 Department of Health (WA), “COVID-19 cases and contacts”, updated 20 December 2022, available at <https://www.healthywa.wa.gov.au/articles/a_e/ coronavirus/covid19-cases-and-contacts>.

3 Government of Western Australia, Department of Premier and Cabinet, “COVID-19 Coronavirus: Managing COVID-19 in WA”, updated 3 March 2023 online at <https://www.wa.gov.au/government/covid19-coronavirus/covid-19-coronavirus-managing-covid19-wa>.

4 Government of Western Australia, Department of Premier and Cabinet, n 3.

5 Worksafe Victoria, “Nurse fined for working while COVID-19 positive”, 26 October 2022, available online at <https://www.worksafe.vic.gov.au/news/2022-10/ nurse-fined-working-while-covid-19-positive>.

6 Department of Health (WA), “COVID-19 cases and contacts”, n 2.

7 Safe Work Australia, <https://covid19.swa.gov.au/ covid-19-information-workplaces>.

8 Francis Burt Chambers, “COVID-19 Update”, 24 October 2022 available online at <https://www. francisburt.com.au/updates/francis-burt-chamberscovid-19-update/>.

9 Worksafe WA Code of Practice for “Psychological hazards in the workplace”, available online at <https:// www.commerce.wa.gov.au/worksafe/mentallyhealthy-workplaces-codes-practice>.