Know and exercise your health and safety rights at work
COVID-19 is a workplace health and safety risk which employers have a duty of care to eliminate, mitigate and/or manage.
Duty of Care
Under the Work Health and Safety Act 2011 (NSW) (the ‘Act’) employers or PCBUs (Persons Conducting a Business or Undertaking) have a primary duty of care to provide healthy and safe work, so far as is reasonably practicable. The employer’s obligation is to provide safe/healthy “work”, whilst workers are at work. There are also obligations for employers to monitor, so far as reasonably practicable, working conditions and the health of workers.
Duty to consult
Employers have a duty to consult workers under Section 47 of the Act.
Employers must genuinely consult workers on measures to control the health and safety risks of COVID-19. Workers should be provided with clear direction and guidance about what is expected of them, in particular:
- workers should know when to stay away from the workplace
- what action to take if they become unwell, and
- what symptoms to be concerned about.
Employers also have an obligation to provide information and training for workers regarding potential health risks.
If current measures are unable to prevent cases of community acquired infection, employers will have obligations to ensure that co-workers are not exposed to known cases or contacts.
Workers also have obligations to take reasonable care of their own health and safety, that their acts or omissions do not adversely affect the health and safety of other persons, comply with reasonable instructions and cooperate with reasonable policies and procedures under Section 28 of the Act.
Where there is potential exposure to COVID-19, workers should advise employers of exposure and the need to isolate in accordance with issued health guidance. Employers should be encouraging self-reporting of such instances and ensuring that there are not barriers or disincentives to reporting.
Employers currently have a varied approach to ensure that workers are not financially disadvantaged by making such reports.
Workers have rights to refuse unsafe work under Section 84 of the Act, including if the worker has a reasonable concern the work would expose themselves to a serious risk from an immediate or imminent exposure to a hazard. The worker needs to have a reasonable concern and there need to be a serious risk. Such risks may include psychosocial risks arising from potential exposure to the virus. Given the public health response, serious risk will be dependent upon if there is a risk of contact with a confirmed case. It is less clear if there is a “suspected case”.
You can read the full Act here.