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Courtesy of COVID-19, today’s workplace may be at home, at the office, or a combination of both. “The workforce probably won’t return to what it was,” says Greg Lindner, co-founder of the WorkSafe Guardian, a 24/7 safety alert app designed for at-risk lone workers. “That changes a lot of circumstances for people. In an office, you’re working next to someone. You’re not alone. But now, many people work alone at home. There’s no handbook on how to handle this.”

Lindner believes the pandemic has made many management teams more aware of mental health issues. “They are creating mechanisms to help employees — and the company that doesn’t create these will be one that doesn’t keep staff.”

But COVID-19 certainly hasn’t changed the board’s basic duty of care for WHS, even if employees are not in the office. “A workplace is a workplace, regardless of where it is,” says Lindner. “So if you’re working from home, you’re still an employer’s employee.”

Nathan Winter GAICD is a director at Nathan Winter & Associates, chair of the College of Fellows at the Australian Institute of Health and Safety (AIHS) and immediate past president of the International Network of Safety & Health Professional Organisations.

“WHS is part of directors’ due diligence requirements,” he says. “Generally, it involves, but is not limited to, conducting some kind of risk assessment within the organisation to highlight what the critical risks are and how they are controlled. Directors must assure themselves that the controls for critical risks are in place and are effective. Most employees working from home will be able to do their work via a computer and aren’t taking physical pieces of equipment or machinery home — so the general risks that apply in the office will apply at home. For example, what are the electrical risks for the computer and equipment? Has it been tested and tagged? If it is policy and applies in the office, why isn’t the organisation applying that in the home?”

Mental health check

One factor that’s harder to assess is the mental health of employees working at home. “Regular communication with employees is definitely required,” says Winter. “If you’re aware someone lives at home alone, that probably requires even more frequent communications.”

He adds that there is computer software available to show exactly how long someone is at their keyboard, and even how many strokes they make on it. “If you do this, you may be demonstrating you don’t really trust your employees — but you may also help pick up if their mental health is suffering,” he says. “If they haven’t logged on all day, give them a call. It’s a work system and it’s work hours.”

Winter also recommends pulse surveys. “You can ask employees to complete short surveys to assist in gauging how people are feeling.”

Family violence

A big risk of remote or hybrid working is the possibility of employees being exposed to family violence at home, when they would otherwise be in the office. “This is very much a one-on- one conversation between the worker and the manager about whether there is a risk and what can be done about it,” says Winter. “Employers are really limited in what they can do if the victim doesn’t make their employer aware of the situation — or want to do anything about it. Where states are in full lockdown, then employers have less opportunities to assist.”

While saying it’s a good concept, Winter doesn’t understand family violence leave. “Why would you take unpaid ‘family violence’ leave when, depending on the policy of an organisation, you could take a day or two of paid personal/carer’s leave with no questions asked? Often, people are stuck in these situations because they haven’t got the means to get away, so why take unpaid leave?”

As part of its review of the unpaid leave entitlement, the Fair Work Commission is considering whether employees should be able to access paid personal or carer’s leave for the purpose of taking family and domestic violence leave. It has expedited its review after the Australian Council of Trade Unions wrote to it noting that “the increased incidence of family and domestic violence during COVID-19 has clearly demonstrated this remains a pressing problem confronting employees and employers — and the wider community”.

Last year, the NSW Supreme Court ruled that an employer could be held responsible for family violence when staff work from home. The decision was made in the final appeal over a workers’ compensation claim by the children of a woman killed by her de facto partner.

The lone worker

“If someone is working alone in a high-risk situation, the rule in most organisations will be that they cannot do that work on their own,” says Winter. “They have to have another person there, in case they get injured. There are workplaces where people do work alone, but there are technologies, for example, apps where they have to push a button acknowledging that they are still alive every so many minutes. If they don’t do that, a message goes out to their supervisor, manager or someone else to check on them.”

Indeed, as Winter points out, technology has certainly made things easier than if the pandemic had occurred 30 years ago. Platforms such as Zoom, Microsoft Teams and Webex have improved communications and are being used for weekly team meetings for employees — in some cases, even Friday evening drinks. “Some organisations will have tools at their staff’s disposal, such as mental health survey apps,” says Winter. “The difficulty is that people can mislead you about how they are actually feeling because they don’t want others to judge them.”

Forced vaccinations

Three in five Australian workers are open to their employer mandating COVID-19 vaccinations in the workplace, according to the June quarter ELMO Employee Sentiment Index (ESI). The survey found that 62 per cent of Australian workers believe employers should require their employees to be vaccinated, while nearly half (44 per cent) of Australian workers are uncomfortable going into work if their colleagues are not vaccinated.

The vaccine rollout is also an important factor for workers, with 76 per cent reporting they believe the economy will only return to normal if an Australian COVID-19 vaccine rollout is successful. However, only 41 per cent of workers believe Australia is on track with its vaccination rollout.

Accordingly, ELMO Software CEO Danny Lessem believes the COVID-19 vaccine will become a tough challenge for employers in the coming months. “We’re already seeing different companies take different approaches to managing vaccination requirements in the workplace,” he says. “It’s far from a cut-and-dried matter and will require employers to be able to engage in transparent one-to-one communication with their employees.” The AIHS believes that whether a business can make a vaccination mandatory is an employment law issue. It says that the problem is not yet fully resolved and will depend on the circumstances of the workplace.

Asked about mandatory workplace vaccinations, Winter notes, “The issue is that if you make it compulsory ahead of the government mandating it, you are going to disengage part of your workforce, particularly when not everyone has had access to the vaccine because of the slow rollout to different age groups and states. The only workplaces where it has been made compulsory are those where it’s been mandated by the government. Encouragement is the best that organisations can do. The AIHS has put out a position paper on vaccines. We believe that all organisations should encourage their workers to get vaccinated once the vaccines become available to them.”

According to barrister Ian Neil SC MAICD and RMIT University’s Anthony Forsyth, employers have the power to issue “lawful and reasonable” directions that could be used to compel staff to get vaccinated, but the law has not been tested in court for that purpose. The most relevant Fair Work Commission ruling to date that provides some guidance on this is from November 2020. In this case, the Fair Work Commission dismissed an employee’s unfair dismissal claim for being terminated due to refusing to have a flu vaccination, citing non-medical grounds. The employee was a childcare worker employed by an early learning company that had made flu vaccinations a condition of employment — although allowing exceptions on medical grounds — in April 2020.

Another Fair Work Commission unfair dismissal claim final ruling is still pending, which involves a care assistant who declined to get a flu shot because of her understanding she had had an adverse reaction to a flu shot as a child. She did not produce supporting evidence for a medical exemption, which resulted in her employer no longer rostering her for work.

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