The new coronavirus, COVID-19, has now been officially declared as a pandemic by the World Health Organization. COVID-19, a respiratory virus which reportedly spreads primarily through droplets generated when an infected person coughs or sneeze, or through droplets of saliva or discharge from the nose, is now spreading fast around the world, with over 153,517 confirmed cases and 5,735 deaths in 134 countries and regions outside China where it was first identified. It is expected that in the days and weeks ahead, both the number of cases and affected countries will continue to increase.
In much the same way that countries need to work collaboratively in co-operation with each other in attempts to bring the pandemic under control, so too do workplaces. In that regard, the unfortunate circumstances that we currently find ourselves in also represent an opportunity for resilience and capacity building in our co-ordination and co-operation efforts across the business community for health and safety.
In this guide, we set out the key relevant health and safety legal obligations, current state of Australian Government advice and some practical steps for organisations and individuals in managing this emerging issue.
What are our health and safety legal obligations associated with COVID-19?
The primary duty for health and safety
All organisations have a duty to ensure so far as is reasonably practicable, the health and safety of their workers and ensure that the health and safety of other persons is not put at risk from work carried out as part of the undertaking.2 The primary duty requires organisations to:
provide and maintain a work environment without risks to health and safety
provide and maintain safe systems of work
provide adequate facilities for the welfare of workers at work
provide any information, training, instruction or supervision that is necessary to protect all persons from risks to their health and safety arising from work, and
monitor the health of workers and conditions at the workplace for the purpose of preventing illness arising in the context of work.3
As such, organisations need to adopt proactive risk management strategies in minimising the potential for contracting COVID-19 in the workplace context. Adopting such a risk management approach is also critical to avoid the potential to be held liable for actions in tort down the track as organisations consider avenues to claw back what may be significant economic losses where those losses may be attributed to organisational failures in effective management of the issue.
Consultation, co-ordination and co-operation
We live in an interconnected world and the world of work is no different. The horizontal consultation duty under health and safety laws requires that persons who have an overlapping duty for health and safety consult, co-ordinate and co-operate in relation to that overlap.4 As such, if you become aware of a suspected or confirmed COVID-19 case in your workplace, there is a need to share that information (along with your response) with other duty holders so that they may consider that information and its relevance in their own undertakings. Building and facilities management providers have an important role to play here in serving as the conduit for information sharing between tenancies and in contacting individuals who have been visitors to affected premises, for example. For tenants, co-ordinate with your building/facilities management organisations to ensure you understand what their processes are for exchanging relevant information across duty holders within the premises and implementing strategies for COVID-19 and ensure that their approach aligns with your own.
Worker consultation is also critical at times when policies and procedures are being updated that may affect health and safety. Workers need to be given a reasonable opportunity to express their views and contribute to the decision-making processes.5 We discuss this further below.
There has been significant discussion from unions and policy makers on the impact of COVID-19 being disproportionately felt by those in precarious employment (for example, casual and contract workers).6 In this regard, an oft-overlooked aspect of the health and safety laws may come into play.
The health and safety laws provide offences for engaging in discriminatory conduct for prohibited reasons. Organisations should take care that there responses to COVID-19 do not inadvertently fall foul of the prohibitions in this regard. If a worker (or indeed a prospective worker) raises or proposes to raise an issue or concern about health and safety (such as COVID-19) and the organisation dismisses that person or terminates a contract for services with that person, or puts them to detriment in their engagement or alters their position to their detriment, that could be considered discriminatory conduct for a prohibited reason under health and safety laws.7
The expansive definition of worker under health and safety laws means that this prohibition applies to a far broader group of individuals than just employees. Workers are defined as persons who carry out work in any capacity of a person conducting a business or undertaking including employees, contractors, subcontractors, employees of contractors or subcontractors, labour hire workers, outworkers, apprentices or trainees, students gaining work experience and volunteers.8
Terminating commercial arrangements with other duty holders because they have raised health and safety concerns (such as COVID-19) could also be considered discriminatory conduct for a prohibited reason under health and safety laws.9 One can easily imagine a situation where a subcontractor's workforce is no longer available due to COVID-19 resulting in disruption and delay claims. Terminating that organisation's contract because they have informed you of a health and safety issue preventing performance (COVID-19) may fall foul of the OHS discriminatory conduct provisions. As such, in the COVID-19 context, there is a need to carefully consider statutory health and safety legal obligations simultaneously when considering the application and scope of force majeure clauses in contractual arrangements.
What is interesting about the discriminatory conduct provisions is that they can lead to civil proceedings being brought by the persons affected for compensation (or injunctive relief)10 as well as the imposition of criminal penalties following investigation and prosecution by regulators.11 In those civil proceedings, defendants have to prove on the balance of probabilities that the prohibited reason alleged for the discriminatory conduct was not a substantial reason for the conduct.12
Remember that there are also requirements for incident notification under health and safety laws. Illnesses that require immediate treatment as an in-patient in hospital are serious illnesses that must be notified to health and safety regulators if it is an incident that has arisen out of the conduct of the business or undertaking.13 That is, if there is a connection between the work environment and how the individual has contracted COVID-19 (requiring in-patient treatment), that would require notification to health and safety regulators under OHS laws.
What should organisations be doing?
Here are some top tips for organisations to consider in developing and implementing response plans for the COVID-19 pandemic:
Understand the hazard / risk profile:
In the Australian context, as at 10.30am on 15 March 2020, there have been 249 confirmed cases of COVID-19 including 3 deaths in the country. Of those cases, 27 have been reported as having recovered.14 Individuals at most risk of contracting the virus in Australia are those who have been in:
a high risk country or region recently (such as mainland China, Iran, Italy or the Republic of Korea)15, or
close contact with someone who is a confirmed case of coronavirus.
Symptoms can range from mild illness to pneumonia. Those who contract COVID-19 may experience fever, flu-like symptoms such as coughing, sore throat and fatigue as well as shortness of breath.
COVID-19 is most likely spread through:
close contact with an infectious person
contact with droplets from an infected person's cough or sneeze
touching objects or surfaces that have cough or sneeze droplets from an infected person, and then touching your mouth or face.
Keep your knowledge of the hazard/risk profile and Government advice on control measures up to date:
The situation is continuously changing. Guidance and advice is updated as developments occur. As such, establishing rigorous processes for monitoring the latest advice and considering the impact that may have on your business (and its current systems and processes) is important.
Australia started with specific travel restrictions being put in place for travellers from Mainland China, Iran, Republic of Korea and Italy. However, from midnight on 16 March 2020, all travellers to Australia (including citizens) are being required to self-isolate for 14 days with cruise ships also being banned from docking at Australian ports for 30 days. Further, Commonwealth, State and Territory Governments have all agreed to provide public advice against holding non-essential, organised public gatherings of more than 500 people from Monday 16 March 2020 as a precautionary step recommended by the Australian Health Protection Principal Committee designed to reduce community transmission given the increasing number of cases in Australia. Further, advice now includes that non-essential meetings or conferences of critical workforces such as health care professionals and emergency services should also be limited.
Closely monitor official advice from the following sources:
World Health Organization
Federal Government Health Department
Safe Work Australia's Coronavirus (COVID-19): Advice for PCBUs
WorkSafe Vic's Preparing for a Pandemic: A Guide for employers, February 2020
Department of Foreign Affairs & Trade Smart Traveller website
State and Territory Health Departments20
As new information becomes available, continuously provide updates to your workforce and overlapping duty holders. Ensuring you have effective mechanisms for communication wherever your people may be located is a critical aspect for your organisation's preparedness and response. What is most effective will depend on your workforce's profile.
Business continuity planning and execution
Before 2020, most organisations would not have considered global pandemic at the top of their business continuity risks or priorities. Indeed in February 2020, Mercer conducted a survey to determine how many organisations had business continuity plans or protocols in place to combat a global pandemic such as COVID-19 and found that 51% of organisations surveyed did not have such a business continuity plan21.
What the February 2020 Mercer study did show is that most organisations are monitoring the situation and adopting the following practical steps:
curtailing or postponing nonessential travel where there are confirmed cases of COVID-19 (72%)
requesting staff self-quarantine for 14 days where they have recently travelled to Mainland China (58%)
monitoring the situation to determine the global need to work remotely (33%)
arranging greater flexibility in terms of working from home arrangements (58%)
providing hand sanitizer in the workplace (68%), and
providing masks in the workplace (48%).
Organisations need to review and activate their business continuity plans and ensure that they are appropriate for the global pandemic scenario we currently face. Consider the impact of any national guidance on those business continuity plans.
Business continuity planning in the context of a pandemic requires planning for the following four phases: prevention, preparedness, response and recovery. In applying strategies across those 4 phases, you need to identify your business' core services and core requirements when it comes to maintaining your supply chain. You need to identify the necessary staffing arrangements, methods for protecting the health of workers, your communication strategy for workers, clients and your supply chain, contingency plans as well as any financial implications that need to be managed. Those matters are addressed by conducting risk assessments and then analysing the potential business impacts of those risks and determining prioritisation strategies for maintaining your critical business functions. You then need an incident response plan that includes the actions you will take in mitigating the threat of the pandemic and a recovery plan that works to limit the recovery time and minimise your business losses in the return to usual business operation.22
In the context of COVID-19, there are a number of areas of your business continuity plan and emergency management arrangements that will need to be considered. These include policies, processes and procedures for:
international and domestic travel23
hosting and attendance at events
remote working / working from home
infection control including processes for managing the situation if a worker becomes ill at work, considering effectiveness of ventilation and air conditioning, making arrangements for additional deep cleaning where necessary
absence/illness notification processes and procedures
emergency response including triggers for office evacuation, and
recovery and return.
You need to ensure that you communicate to workers and other individuals who may visit your premises your expectations with respect to enforcing compliance with national requirements and your own organisation's policies and procedures.
What is reasonably practicable in the circumstances may also depend on what industry you are in. The Federal Government has issued specific guidance materials for the health, aged care, education, travel and transport industries and for workers in the public transport, mail, cargo and on border frontlines.24 Organisations in those industries must take steps to ensure the information in those fact sheets is integrated into their systems and processes and effectively disseminated to workers.
Worker consultation in the context of change management
Of course, under health and safety laws, there is also a requirement to consult with workers when identifying hazards and assessing risks and making decisions about ways to eliminate or minimise those risks. That includes when proposing changes that may affect the health and safety of workers.25 As such, you need to ensure that you integrate your usual worker consultation processes as you update your business continuity plans for COVID-19.
Ensure that you are listening to your people during the response to this pandemic. What is it that concerns them? What sort of measures would they like you to adopt? What kind of information would they like to receive from you? What kind of assistance and support would they like to see in the event that they are required to self-isolate or work from home for an extended period of time? Take steps to make sure that you are adopting consistent approaches to your workforce whilst also considering that there may be different impacts on different populations within your workforce.
Responsibility allocation and clear lines for reporting and communication management is critical to ensuring that business continuity plans achieve their objectives. Ensure that your whole workforce knows exactly when and who to contact and in what circumstances as you enact your plans.
Considering health and wellbeing of workers in times of uncertainty
In the Mercer study, only 16.4% of respondents indicated they were "addressing psychological stress" in the context of COVID-19. Much of the public health advice currently being issued includes recommendations for social distancing and social isolation.26 However, social isolation comes with its own hazards and risks as secondary effects. Social isolation is the state of having minimal contact with others. While the concepts do not necessarily co-exist, there is the potential for social isolation to lead to loneliness. We are already in the midst of a loneliness epidemic in Australia. In 2018, the Australian Loneliness Report identified that one in four Australians reported feeling lonely at least one day per week.27 Loneliness is the feeling of distress people experience when their social relations are not as they would like them to be.28 The impacts of COVID-19 may further exacerbate this situation.29
Whether small numbers of individuals are quarantined at home or organisations find themselves triggering the mass deployment of remote working there is a need to develop strategies for wellbeing checks on such individuals. While organisations have working remotely policies and are currently focused on ensuring they can be deployed at scale from a technical perspective, it is important to ensure that wellbeing is considered in how these frameworks are deployed. Consider how you will find ways to maintain organisation and team cohesion whilst implementing isolation strategies. In that regard, consider:
daily check-ins for workers who are subject to quarantine/self-isolation following their travel to high and moderate risk locations due to national guidance
providing guidance to your workforce on how to maintain social relationships support whilst being physically isolated
providing specific guidance to your leaders on how to support their teams' wellbeing while working remotely. Leadership messaging for staff may include providing guidance to workers on how to maintain a positive challenge mindset, expecting and experiencing change and uncertainty, tolerating discomfort but also re-setting expectations and priorities given changing circumstances.Encourage leaders to establish routines in maintaining connection virtually and connecting via technology with their people and listening to their needs as any period of isolation continues.Burnout30 can also become a risk when working remotely.People also struggle with unplugging after work when working remotely.Leaders sharing their tips on how to unplug can encourage their teams to do the same
developing buddy systems for peer to peer support, and
encouraging people to seek the support of psychologists as well as GPs during this time.Reminding individuals of the workplace's arrangements for employee assistance programs.
Demonstrating active leadership and respect in times of crisis
There is a need for organisations to be mindful of the potential for discrimination, bullying, harassment and occupational violence in the context of COVID-19. We have already seen a number of highly publicised instances of violence in workplace contexts such as supermarkets with shortages of necessary household items. Organisations should be reviewing their risk assessments to consider whether they have sufficient management strategies in place for scenarios that may involve violence in the workplace associated with the pressures that may arise due to the impacts of COVID-19.
As NPR put it, "the global response to COVID-19 has made clear that the fear of contracting disease has an ugly cousin: zenophobia"31. By way of examples, we have seen disheartening reports of incidents such as a refusal to allow Asian doctors to treat children at hospitals32, various Chinese restaurants suffering disproportionate losses or being forced to close due to lack of patronage33, claims of people being kicked off public transport or otherwise being subjected to other verbal abuse.34 What we see in the public discourse has a way of filtering through to the workplace context.
Leaders need to establish the tone for how to behave throughout the course of the pandemic and that includes making it clear that such discrimination, bullying and harassment will not be tolerated. Organisations should review their policies and procedures for occupational violence, discrimination and bullying and harassment to consider how well they would respond to those issues in the context of COVID-19.
Effectively managing return to the workplace setting
Any kind of business disruption has the potential to lead to significant pressure on operations. One of the lessons learnt throughout our years of experience in dealing with fatalities and serious incidents is that not enough attention is placed upon effectively managing the transition back to "business as usual".
When returning to workplaces and projects in these sorts of circumstances, there can be pressure (real or perceived) to try to "make up the difference", by working longer, faster or cutting corners in an effort to "get back on track". We see this play out time and time again, particularly in the contexts of construction and manufacturing. However, these are also the very sorts of scenarios that lay out the pre-conditions of catastrophic health and safety incidents in the workplace.
Notwithstanding project delays that may occur due to the disruption posed by COVID-19, leaders need to be proactive and mindful in watching out for these kinds of behaviours and conditions and specifically send the message that health and safety requirements must be implemented and work to proactively remove any timeframe pressures that may result in shortcuts being taken. This may require a level of co-ordination with clients and other stakeholders.
What should we encourage all individuals to do?
In the event that individuals have returned to Australia from anywhere overseas (including those areas that are at higher risk for COVID-19)35 or who think they may have been in close contact with a confirmed case of COVID-19 in the last 14 days, they should:
Immediately isolate themselves for a period of 14 days36 and seek medical attention in the event that they develop symptoms such as a fever and/or a cough, sore throat, tiredness or shortness of breath,
In the event of symptoms, telephone the health clinic or hospital where they intend to seek medical assistance prior to arrival at those facilities, report their relevant travel/contact history and follow instructions, and
Contact their workplace to report that they are in isolation so that any necessary workplace responses may be triggered.
The best form of protection individuals can adopt at this time is effective hygiene practices. Organisations can encourage workers and visitors to practice good hygiene and social distancing37. In that regard, individuals should:
Clean hands frequently38 by:
washing them with soap and water, or
using an alcohol-based hand rub.
Cover mouths when sneezing or coughing but not using hands to do so (for example, coughing or sneezing into a tissue and disposing of the tissue immediately or into the bend of your arm at your elbow rather than your hands).Use hand sanitizer after coughing or sneezing.
Seek the assistance of health care professions if they start to feel unwell and avoid contact with others when unwell.Workers should not attend work while unwell.
Practice social distancing in reducing and restricting physical contact with others39 (for example by considering alternatives to meeting in person (preferring the use of telephone and video conferencing) and maintaining minimum distances of at least 1.5 metres between individuals).
Consider minimising physical contact with populations that appear more vulnerable to becoming severely ill if they contract the virus.40Avoid any contact with those populations if you are unwell.If contact cannot be avoided, consider taking additional precautions including wearing masks when coming into contact with those populations.Such vulnerable populations include:
older41 and elderly people
people in group residential settings
remote Aboriginal and Torres Strait Islander communities
immune compromised people (for example those with cancer), and
people with respiratory issues (for example pre-existing medical conditions such as asthma, diabetes and heart disease).
1. As at 15 March 2020. World Health Organization, Situation Report 55, as at 15 March 2020. Please note the information and links in this update are current as at 9am AEST 16 March 2020. The situation is constantly changing and guidance material being updated by official sources. We recommend seeking guidance directly from the Government official websites in real time.
2. See section 19, Work Health and Safety Act 2011 (WHS Act).
3. See section 19(3), WHS Act.
4. See section 46, WHS Act.
5. See sections 47 and 48, WHS Act.
7. See sections 104-107, WHS Act.
8. See section 7, WHS Act.
9. See sections 104-107, WHS Act.
10. See section 112, WHS Act.
11. See section 104, WHS Act. Criminal penalties being up to $100,000 for an individual and $500,000 for an organisation.
12. See section 113, WHS Act.
13. See sections 35-38, WHS Act.
14. See Australian Government, Department of Health, Coronavirus (COVID-19) current situation and case numbers, as at 15 March 2020.
15. Higher risk locations listed by Department of Health as at 15 March 2020.
16. Note that specific travel restrictions continue to apply to travellers from those areas. See Department of Home Affairs, COVID-19 (Coronavirus) and the Australian border alert, 15 March 2020.
17. See Department of Home Affairs, COVID-19 (Coronavirus) and the Australian border alert, 15 March 2020.
19. As at 15 March 2020, this advice does not apply to workplaces, schools, universities, shops, supermarkets, public transport or airports. See Australian Government, Department of Health, Coronavirus (COVID-19) advice for public gatherings and visits to vulnerable groups health alert, 15 March 2020.
21. Mercer, Business responses to the COVID-19 outbreak: survey findings, February 2020. The survey data, collected by Mercer between February 6 and February 18 2020 covered over 300 companies in 37 countries.
22. See ISO 22301: 2019 - Security and resilience – Business continuity management systems - Requirements; AS/NZS 5050:2010 Business continuity – Managing disruption-related risk and HB292- 2006: A Practitioners Guide to Business Continuity Management.
23. Australians are currently advised to reconsider need for overseas travel at this time given the potential for exposure overseas and the unpredictable and complex nature of overseas travel while nations grapple with and implement their own responses to the pandemic. See here. Australian workplaces may also need to consider whether they have any workers who fall into the category of foreign nationals (excluding permanent residents of Australia) who have been in COVID-19 higher risk areas (mainland China, Iran, Republic of Korea and Italy). Those individuals are not permitted to enter Australia for 14 days from the time they have left or transited through those locations. See Department of Home Affairs, COVID-19 (Coronavirus) and the Australian border alert, 15 March 2020.
25. See sections 47-49, WHS Act.
26. See for example, Department of Health home isolation fact sheet. Individuals who need to isolate are encouraged not to go to public places such as work, school, shopping centres, childcare facilities or universities and to organise for others to obtain food and other necessities for them. They are also encouraged to wear masks if leaving home to seek medical attention. Where unwell, individuals are also encouraged to stay more than 1.5 metres away from people.
27. Lim, Michelle; Australian Psychological Society and Swinburne University of Technology, Australian Loneliness Report: A Survey exploring the loneliness levels of Australians and the impact on their health and wellbeing, 2018.
29. Buffer, State of Remote Work Survey 2019 annual survey of almost 2500 remote workers found that loneliness was the biggest struggle with working remotely in 2019 for 19% of respondents (coming in second for the top issues with working remotely). Rounding out the top three issues were unplugging after work (the biggest struggle for 22% of respondents) and collaborating and/or communication (the biggest struggle for 17% of respondents).
30. The 11th Revision of the International Classification of Diseases (ICD-11) defines "burnout" as a syndrome conceptualized as resulting from chronic workplace stress that has not been successfully managed. It is characterised by three dimensions: feelings of energy depletion or exhaustion; increased mental distance from one's job, or feelings of negativism or cynicism related to one's job; and reduced professional efficacy.
According to ICD-11, burn-out refers specifically to phenomena in the occupational context and should not be applied to describe experiences in other areas of life.
32. Wahlquist, C, Doctors and nurses at Melbourne hospital racially abused over coronavirus panic, The Guardian, 27 February 2020.
33. Consider the round-up on reporting on this issue in Yu, J, Take a bao: Chinese restaurants are always there for us. Let's be here for them, The Guardian, 19 February 2020.
34. Conversely, in more recent days we have also seen more heart-warming stories of individuals using the power of music to maintain social connection whilst in isolation throughout Italy, for example. Horowitz, J, Italians Find 'a Moment of Joy in this Moment of Anxiety', New York Times, 14 March 2020.
36. Mainland China and Iran have blanket isolation requirements but for the Republic of Korea and Italy, these depend on which date you travelled (on or after 5 March from Republic of Korea and on or after 11 March for Italy). See Australian Government, Department of Health, Coronavirus (COVID-19) health alert, as at 14 March 2020.
37. See Australian Government, Department of Health, Coronavirus (COVID-19) – Information on social distancing Fact Sheet, 15 March 2020.
38. There are key times when handwashing can be of significant benefit in minimising the spread of germs. These include before, during and after preparing food, before eating, after blowing your nose, coughing or sneezing, before and after caring for sick persons, before or after treating wounds, after using the bathroom, when cleaning children, after touching animals or handling their food and after handling garbage.
39. See Stevens, H, 'Why outbreaks like coronavirus spread exponentially, and how to "flatten the curve"', The Washington Post, 14 March 2020 for a great piece of journalism with graphics to explain and demonstrate the importance of social distancing and isolation for "flattening the curve" in reducing the spread of viruses such as COVID-19.
40. Australian Government advice initially stated that you cannot attend work if you work in a setting with vulnerable people if you have returned from a country or region that is at higher risk for COVID-19. That advice has now been removed in light of Australia's new blanket self-isolation requirements following all overseas travel. However, in our view the importance of that isolation in the context of vulnerable populations bears repeating given that significant reliance is currently placed upon individuals voluntarily complying with these directions.
41. The Australian Government Department of Health advice has indicated that those over 60 years of age and those with chronic disease are considered vulnerable. See Australian Government, Department of Health, Coronavirus (COVID-19) advice for public gatherings and visits to vulnerable groups health alert, as at 15 March 2020.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.