COVID-19 challenges keep coming for employers

by Dominic Fleeton, partner at Kingston Reid

With nearly 80% of eligible Australians doubled vaccinated and the 90% target likely to be reached before year-end, it might suggest employers will breathe a little easier concerning all matters COVID-19 in 2022. Sadly, it’s unlikely to be the case. Indeed, life could be more difficult for them next year.

For much of the past two years, many employees have worked from home. This has especially been the case in Victoria where Melbourne has been locked down for more than 260 days, leading it to be dubbed the world's most locked-down city. Although this mode of work did spawn its own set of problems – lack of communication, social isolation, and defining working hours, for example – so too will employees returning to the workplace.

To begin with, COVID-19 is not disappearing, at least in the short term. Australia is still averaging more than 1000 cases a day (Victoria comprises the bulk of these), a number that could rise as all states and territories open up their borders. High vaccination rates will help minimise the medical impact, but the fact remains people will still be admitted to ICUs and some, tragically, will die.

But no government is retreating from opening up. It will mean COVID remaining a fact of life, and employers will need to respond to the potential impact this could have on their workplaces. They will not be expected to eliminate the risk of COVID transmission in the workplace – and the law does not require them to do so.

But they will need to be able demonstrate that they have taken all “reasonably practicable” steps to mitigate the risk of transmission. Saying your entire workforce is double vaccinated will not suffice. It’s not just their employees; contractors and customers will also have to be included in any COVID minimisation strategy.

So, what will this entail? Quite a lot, actually. In the workplace itself it could include rostering changes, staggered meal times and, where possible, physical distancing (1.5 metres is the accepted norm). Ventilation will need to be checked to assess whether it is adequate. It could also mean limiting a worker’s attendance at multiple worksites, a practice that is prevalent in industries such as aged care where COVID poses such a risk.

It will also require employers to regularly clean and disinfect their work sites far more rigorously than was the case before COVID. In some workplaces, face masks might still be required.

Employee personal hygiene will need to be encouraged; all workers should frequently wash their hands. Employees should also be aware of how to spot COVID-19 symptoms—fever, cough, sore throat and shortness of breath – and if they are showing any signs not come to come work, get a test, and self-isolate until the results are known.

All these policies will need to be reinforced with signs and posters around the workplace to remind workers and others of the risks of COVID-19 and the measures that are necessary to stop its spread.

But perhaps the biggest challenge for employers could be the introduction of rapid testing kits to detect COVID-19. It could prove a significant step forward in preventing the spread of COVID-19. But the decision by the Therapeutic Goods Administration (TGA) to approve the home use of rapid antigen tests from 1 November, combined with the recent announcement by Australia’s two largest supermarket chains that they will stock rapid antigen tests, means that these rapid testing kits are about to become widely available. This will require employers to think about whether they will be requiring employees to use rapid antigen testing and to develop strategies about how to require employees to use these kits.

In the past, businesses tended to be reactive, not proactive, when it came to COVID. Employees either had symptoms or were exposed to someone who had symptoms; in both cases they got themselves tested and isolated until they got their results. But the approval of rapid antigen testing raises a host of questions for employers.

They will need to determine whether they can legally require employees to undertake rapid testing, and, if yes, will they be able to refuse them entry to the workplace or even dismiss them for not doing so. The frequency of testing, and where that testing is done, are also potentially contentious issues. For example, is a rapid antigen test taken at home of any utility if the employee then jumps on a train to get to work? If testing is done away from the workplace, that will raise the issue of verification. Privacy issues will also arise with rapid antigen testing.

Then there is the question of employees who typically need to travel for work. With borders open, will employers be expecting them to return to their old travel routines. If so, what risk assessment processes will they put in place before approving travel? Will employees have the right to refuse to travel on COVID-related grounds?

For nearly two years employers have been grappling with the fallout from COVID, often with either little or conflicting government policy (especially between states). Now they must devise strategies that allow them to return to their workplaces and pre-COVID work patterns as safely as possible while the threat of COVID is still very much part of the equation. If past experience is any indicator, it will not be easy.