Can I direct an employee back to the office when they have been working from home? Can I require employees to wear face masks? Can I require employees to download or use the government’s COVIDSafe app? These questions and more are answered in our latest blog post.
The following content is based on information availableat the time of publishing and does not constitute legal advice.
8 September 2020: Updated information has been included in the question "Can I require employees to wear face masks?".
First, consider official government requirements about continuing to work from home. These vary depending on the state or territory and are changing as restrictions start to ease. See ourCOVID-19 Fact Sheet - Official Directions to Work from Homefor information and requirements for each jurisdiction.
When you have considered the relevant government requirements, the next question is whether the direction would be a lawful and reasonable direction. An employee is required to follow lawful and reasonable directions from their employer, and this could include a direction to work at a particular location.
Whether the requirement is reasonable will depend on a case-by-case assessment of an employee’s circumstances.
For further advice and resources about returning to the office safely, see the Health & Safety section of Ai Group'sCoronavirus COVID-19 Advice and Resourcesarea.
Potentially yes. An employee is required under workplace health and safety legislation to comply with reasonable instructions relating to health and safety, and this can include the use of personal protective equipment (PPE).
In Victoria, face coverings have been mandatory in both metropolitan Melbourne and regional Victoria, since early August.
Information about the requirement to wear masks in Victoria can be found here.
NSW Health recommends the use of a face mask in situations where it is difficult to maintain adequate social distancing (such as on public transport) or where a person has symptoms or is seeking medical care.
Guidance in other jurisdictions where cases are low continues to be that face masks are usually not recommended unless an individual is unwell, or caring for a person that has or is suspected of having COVID-19.
More information is available in our blog post: Can masks help reduce the spread of COVID-19?
No, not even on work-supplied mobile phones.
The Privacy Act 1988 states that a person must not require another person to download the COVIDSafe app, use the app, or consent to data being uploaded from the app.
This prohibition is wide-ranging and protects employees, contractors, visitors and customers.
Potentially yes, but there are more details to consider than simply handing someone a thermometer to check employees at the front door.
See our blog post: Can I temperature test employees? for more information about what should be considered before requiring employees to submit to temperature testing.
State and territory directions on social distancing do contain limitations on the number of people that can be present in some locations. For example, the various state and territory directions generally restrict more than one person per four square meters in an indoor space, but these limitations also usually exclude premises that are not open to the public, such as offices and factories.
These restrictions are changing as they are reviewed by governments, so employers are recommended to seek up-to-date advice about the public health directions for their particular state and territory by contacting Ai Group on 1300 55 66 77.
However not breaching public health directions is not a complete answer to the question. Employers are still required to consider the workplace health and safety obligation to reduce risks of infection to employees, customers and others. This means that employers are recommended to take reasonable steps to ensure that adequate physical distancing is maintained, for example that employees work at least 1.5m apart. This might mean that not all employees can safely operate at the same time. Ai Group’s Social Distancing Assessment and Action Plan or one or our WHS specialists can assist employers to consider appropriate distancing requirements.
Employers have a general ability to reasonably direct employees on how they will perform their work and what activities they undertake while at work.
However if the concern is that an employee’s out-of-hour conduct is creating a risk of exposure to COVID-19, the situation is considerably more complex. Traditionally employers have had little right to regulate what an employee does in their private life unless there are significant adverse effects on the employer and the conduct is sufficiently connected with their employment.
Employers do have a legitimate interest in reducing the risks of infection in the workplace, and also in protecting against the reputational damage that comes with potentially being reported as source of COVID-19 infections in the news. However it is unclear whether that is enough to direct employees on how they will conduct themselves during activities that are not connected with their employment. It would therefore be risky to take some form of disciplinary action against an employee that is discovered to be acting in breach of government health recommendations.
That does not mean that the issue cannot be raised with employees, but it does mean that it is recommended to keep the focus of the conversation on educating the employee involved about the risks of their out-of-hours conduct, rather than threatening disciplinary action such as termination.
Please contact one of our WHS specialists or Ai Group's Workplace Advice Line on 1300 55 66 77 for further information.
Ai Group is continually publishing new COVID-19 advice and resources for employers:
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