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OH&S TIPS FOR RETURNING TO WORK AFTER COVID-19 As the more restrictive stages of the COVID-19 self-isolation period eases in most of Australia, some workplaces are considering the option to resume in-office work with their employees. ABy Gladwin Legal partner Rosalyn Gladwin. return to the traditional workplace creates new and unconsidered obligations on employers to implement extra safety procedures to safeguard the health and wellbeing of their employees. Employees are looking towards their employers, now more than ever, for guidance and to help keep them safe. We recommend considering the following steps to help ease employees back into the traditional workplace setting. Holistic approach All workers have an entitlement to a healthy and safe working environment. This means that employers have an obligation to take necessary risk assessment measures associated with the workplace and to take all reasonably practicable steps to eliminate or minimise those risks. In the COVID-19 world, this means that the foreseeable risk to be eliminated is that employees and others in contact with employee may contract the illness. As many employees have currently settled into a regular routine of working from home, it’s reasonable that, in so far as it’s reasonably practicable, they be permitted to continue to do so. Businesses may wish to review their remote working policies to ensure employees are up to date with their expectations with regards to OH&S and a long-term working-from- home arrangement. We also note that employees displaying symptoms of COVID-19 may be required to remain at home as they are not fit for work and may put others in the workplace at risk of infection. During this time, if employees are unable to work from home, they are able to access personal leave and/or the two weeks of unpaid pandemic leave as stipulated in many of the affected awards that have recently been varied by the Fair Work Commission. Health screening and temperature checks If your employees are required to be at work, you may have considered conducting some form of health check, such as a temperature check. The view is that fever is one of the common symptoms of COVID-19. Notwithstanding this, Safe Work Australia believes this may be of little benefit, as it’s inconclusive whether this fever is due to COVID-19. It may however assist in acting as one of a series of control measures that you can put in place. We note that the collection of an employee’s temperature may trigger obligations regarding the collection, storage and use of sensitive information under the Privacy Act 1988 and the requirement to obtain each employee’s consent ahead of temperature testing and ensure that your privacy policy is equipped to deal with this type of data collection. Workplace set-up Further to the above point, we recommend that businesses take additional measures to promote hygiene and awareness. This can include: • Posters and/or physical signage regarding the 1.5m social distancing guidelines where possible. • Have hand sanitiser at every entry and exit point. • Ensure posters are visible regarding proper hand washing techniques and frequency. • Where possible, adopt a cashless transaction process. • Ensure work areas are disinfected daily. • Provide disinfecting tools and recommend that employees clean frequently touched surfaces several times a day (such as payment equipment, counter tops, doorknobs, personal equipment). Vulnerable workers Workers who are more likely to suffer serious illness if infected with COVID-19 may attract specific risks that need to be mitigated when compared with the control measures currently in effect for other workers. The Australian Health Protection Principal Committee and Safe Work Australia has recommended that business conduct additional risk assessments for vulnerable workers, including seeking a medical opinion if it’s needed. This will aid in determining the appropriate safety measures to be placed for these types of workers. We note, however, that these control measures will need to be compliant with anti-discrimination laws in Australia. This requirement will be met so long as the laws comply with other laws such as occupational health and safety. Dealing with complaints about workplace safety controls During this very uncertain time, it’s likely that employees may have complaints about the effectiveness of the safety protocols being implemented by the business, even if all your obligations under the applicable health and safety laws are being met. Therefore, it’s important that businesses have a proper complaints procedure to ensure that these concerns are being met, including perhaps the introduction of a health and safety officer. LEGAL About Rosalyn Gladwin Rosalyn is the principal of Gladwin Legal, being an expert in all facets of retail law, including commercial and corporate law and retail leasing. About Gladwin Legal Gladwin Legal is the law firm for retailers. As experts in retail law, the firm understands the legal matters that challenge retailers daily. Its areas of expertise include retail and commercial leasing, supply and distribution agreements, intellectual property, ecommerce and IT agreements, sale of business and competitions and trade promotions. Get in touch at www. gladwinlegal.com.au. “The collection of an employee’s temperature may trigger obligations regarding the collection, storage and use of sensitive information under the Privacy Act 1988.” AUG, 2020 RETAIL WORLD 71