FCW Lawyers

Masking the Problem: The Coronavirus Outbreak – Managing the Risks in the Workplace

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By Graham Dent and Nina Hoang.

It is tough to find a report in the media in relation to the coronavirus (CV) that does not include an attention-grabbing photo of people wearing face masks, their brows furrowed with worry. The images seem to suggest that a mask will, at least in part, protect its user from catching CV. As a result, face masks have flown off the shelves, selling out in many locations around the world and widespread price gouging has been reported in response to panic buying.

Masking the problem?

Are face masks effective in preventing the spread of CV, and are they recommended by health authorities including work health and safety regulators?

Based on current advice, for the general public, only people who have returned from China (including Hong Kong), and are unwell, and have access to a face mask, should use it. That is, a person with symptoms of CV, should be the one wearing a mask. You should not have any people who fall into this classification at work!

For anyone else who is not experiencing the symptoms of the virus, a face mask is not necessary. The exception to this is  a medical professional who could be exposed to infected individuals in the course of their clinical work.

How significant a concern is CV?

The death toll from CV now exceeds that for the SARs virus. The infection continues to spread every day, and the World Health Organisation (WHO) has warned that the first vaccine could be up to 18 months away. A WHO adviser has also warned that the CV spread could get far worse, and that up to two-thirds of the world’s population could be infected. With the rapid proliferation of CV, and without a vaccine, businesses cannot afford to be lax when it comes to protecting employees from potential outbreaks in the workplace.

Your legal obligations

All Australian work, health and safety laws require an employer or person conducting a business or undertaking (PCBU) to ensure, so far as is reasonably practicable, the health and safety of their workers (in this article a reference to an employee also cover a ‘worker’ under WHS legislation) and others at the workplace. This includes providing and maintaining a work environment that is without risks to health and safety.

As part of this duty the employer or PCBU must identify hazards at the workplace, the risks they present, and then, in accordance with the hierarchy of controls, do what is reasonably practicable to eliminate the risks, or to minimise the risks if elimination is not reasonably practicable.

This duty of care also extends to employees required to travel in the course of their job, in particular, care must be taken when travel by an employee can increase their risk of exposure to CV. Work health safety laws can extend legal obligations to employees based overseas and in these circumstances an employer / PCBU may be subject to the health and safety laws in the relevant overseas jurisdiction, in addition to Australian laws. This is important as the risk in an overseas jurisdiction, and legal obligations, may be significantly higher than in Australia.

Any exposure to CV in the course of an employee’s work may give rise to a claim for workers’ compensation. This might relate not only to the illness itself but to psychological health issues which may arise, for example, due to stress. Complexities in workers’ compensation laws will arise when an exposure occurs overseas and legal advice should be sought.

The employee also has a duty to:

  • take reasonable care for their own health and safety,
  • not adversely affect the health and safety of others through their acts or omissions; and
  • follow the lawful directions of their employer, including policies and procedures put in place to address health and safety obligations.

What should be done?

The information below addresses how to deal with employees who may have been exposed to CV. It is drawn from a wide range of sources including all Australian WorkSafe regulators, Safe Work Australia, the Australian Government Department of Health, the US Centre for Disease Control (CDC) and the World Health Organisation (WHO). However, it is not and cannot be comprehensive. If you have specific issues or concerns, legal advice having regard to your circumstances should be sought immediately.

Recommended actions to be taken

At-risk employees

  • Anyone who has had prolonged exposure in an enclosed space with a confirmed case of CV
  • Any employee who has recently travelled to China

Managing at risk employees

  • An at-risk employee should be required to work remotely, or to take time off work as discussed further below:
  • Given the delayed time in which the symptoms of CV can take to become apparent:
    • Request that they work from home, if this is a possibility, in order to self-quarantine for a period of 14 days (from the date of their potential exposure – for example their departure from China).
    • If remote work is not possible, ask them to take paid time off in order to self-quarantine for a period of 14 days. (This should not come from the employee’s accruals as there would be a risk of a discrimination claim as there is no actual basis for determining that they are unwell.)

If they subsequently do become ill then from the time at which symptoms manifest themselves, they should be accorded their sick leave entitlements.

  • At the end of the 14-day period, employees should be directed to get a medical clearance authorising their return to work.
  • Have a communications strategy in place of how to provide all employees with timely information about any developments, the steps being taken to address any new situations and communicate or provide access to the latest public health and travel information.
  • Provide employees training in relevant hygiene, travel and flexible working policies. This might include, for example, limiting non-essential business travel to China and other affected areas and imposing strict hygiene requirements on employees, for example:
  • washing their hands often, with soap and water, or carrying hand sanitiser and using it as needed;
  • covering their mouth while coughing or sneezing; and
  • seeing a health care professional if they start to feel unwell. The primary symptoms of CV are fever, coughing and difficulty breathing
  • Any employees who refuse to comply should be clearly advised that they have duties under work, health and safety laws, the breach of which is a criminal offence, and the failure to follow a lawful direction is also grounds for the termination of their employment.  The employee’s obligations include reporting relevant symptoms immediately.

Higher risk occupational categories

In the US, the Occupational Safety & Health Administration has identified certain industries in which employees are at a greater risk for infection, i.e.:

  • healthcare employees;
  • airline and other travel industry personnel;
  • laboratory employees;
  • border, customs and quarantine employees; and
  • waste management employees.

Employers in these industries should immediately review their infectious disease protocols to ensure that such protocols are up to date and are disseminated to all employees.

The US Occupational Safety and Health Administration has published extensive guidelines addressing each of these at-risk industries, which can be found on its website at the 2019 Novel Coronavirus resources page.

Important caution

This article is general in nature only. Some workplaces face a much higher risk than others, for example medical centres and hospitals dealing with suspected or actual cases of CV.  For advice specifically focussed on the needs of your business please contact Managing Principal, Andrew Douglas, or our Head of Safety and Principal Lawyer, Graham Dent.