Can you make an employee wear a face mask (or other PPE) at work?
24 September 2020
enableHR contains a bunch of resources to help you during the COVID-19 pandemic. They include WHS checklists and policies specifically designed to help you create and maintain a COVID-safe workplace.
Here’s why you should use them…
In Australia, Workplace Health & Safety laws mean all employers have an obligation to ensure the health and safety of their workers so far as is reasonably practicable. WHS is a criminal jurisdiction, so it’s important to get it right.
WHS laws say a person conducting a business or undertaking (PCBU) must use a ‘due diligence’ process to assess the health and safety risks at the workplace, and put in place controls and measures to remove or reduce risks to the extent that they (the PCBU) are able.
Traditional WHS has been aimed at reducing risks of physical injury in the workplace, for example by eliminating trip hazards. But a PCBU’s obligation goes beyond the physical dangers in the workplace to include psychological harm and possible risks associated with the current COVID-19 pandemic.
This year has seen an unprecedented expansion in the scope of risk assessment for all businesses in order to reduce or eliminate the spread of transferable diseases in the workplace. Not only do employers now need to undertake such assessment but, in many cases, States have added more WHS responsibilities which carry substantial penalties for non-compliance.
Many employers are challenged by the nature and scope of the new WHS measures, and what’s considered to be reasonable. So, how should you, as a PCBU, approach this situation?
What PPE and WHS measures do I need? What’s ‘reasonable’?
How you deal with the risk of coronavirus in your workplace depends on the type of industry you’re in, your workers’ level of interaction with the public, and the size and profitability of your enterprise, among other factors.
While it may be reasonable to expect a large chain of supermarkets to install physical barriers, as an example, it may not be feasible for a local corner store to afford the same protection for its workers.
What you need to do is carry out an extensive risk assessment of your workplace and find out what would be necessary to prevent the spread of a virus in that unique environment. This risk assessment should involve a reasonable engagement and consultation process with employees to get their opinion on what’s needed to achieve and maintain a safe workplace.
Every workplace is different, and there are a few questions you, as an employer, need to consider:
- Have you put appropriate hand sanitisation facilities in place?
- Does your business engage directly with the public? If so, what sanitation facilities have you provided to the public?
- Do you assess customers/clients’ wellbeing prior to entry – for example, by checking their temperature with a non-contact IR thermometer – and do you have guidelines on what to do if they fail this assessment?
- Do you record your customers/clients’ presence in the workplace? For example, by having a sign-in sheet or QR code linked to a registration app or service?
- Do you need to erect a physical barrier in the workplace?
- Should face masks be worn at work?
- Do you have any employees in high-risk categories due to age or a pre-existing condition, and can you alter their working conditions to reduce their risk of exposure?
- Can you alter employee start and finish times to prevent time spent on public transport at peak periods?
- Is it reasonably practicable for an employee to work from home?
- Do you need to change the layout of your workplace, or limit the number of workers in each area, to maintain social distancing?
- What additional (if any) cleaning and hygiene requirements should be put in place, especially where employees share a workstation or items such as phones and computers?
- Does the company have up-to-date policies and procedures concerning notification of illness, self-isolation, an employee displaying symptoms in the workplace, etc.?
Can you make your employees wear face masks?
One of the more challenging questions raised at this time is whether employers can mandate the use of face masks and other forms of PPE.
The legal answer is: where a risk assessment has been conducted and a face mask or other forms of PPE is considered necessary in the circumstances, an employer may provide a ‘reasonable direction’ for an employee to use a face mask or other forms of PPE while at the workplace or in the performance of their duties. Failure to comply with any ‘reasonable direction’ may result in disciplinary procedures for that employee.
Now, having said that, it is important that the direction be reasonable in the circumstances and, as such, any employee who is able to establish a reasonable explanation as to why they can’t comply with the direction to wear PPE should be assessed and considered further. For example, an employee may be medically prevented from wearing a face mask.
It’s likely that, for most employers, there will be a small number of such cases. If these incidents occur you, as an employer, should request a medical certificate and consider what, if any, additional steps and measures you can take to further minimise the risk of harm to that employee, such as altering their duties to limit their direct engagement with the public.
But wait…there’s more!
As well as the general obligations outlined above you, as an employer, must also follow the overarching, State-specific guidelines put out by their respective Departments of Health regulating the use of PPE in workplaces.
In Victoria, for example, from 11:59 PM on Sunday 2 August 2020, wearing face masks in public became a legal requirement, and businesses are required to ensure that their workers wear a face covering while at work, unless a lawful exception applies.
Under the Victorian Stage 4 ‘Stay at Home’ restrictions, only ‘Permitted Work Premises’ are allowed to conduct on-site operations and must have completed a COVIDSafe Plan, or high-risk COVIDSafe Plan, to continue operating. These plans must indicate the level of face-covering or PPE required for the workforce.
In NSW, employers are also expected to provide PPE to workers, including those contractors who do not have appropriate PPE.
Where to from here?
Once you have your WHS measures in place, take the time to frequently check on workers, ensure that they are compliant with all relevant public health regulations, and counsel those workers who aren’t following the directions you’ve issued regarding the use of PPE. In cases where a worker offers no justifiable reason or explanation, you should seek advice before taking appropriate disciplinary action to avoid risks.
The current pandemic is creating many challenges for businesses, and your obligations as an employer are changing frequently. We frequently update enableHR to reflect these changes in the law. Check out the COVID-19 resources in enableHR for policies and checklists that will help you easily create a compliant and COVID-safe workplace. Get in touch with us if you need any help finding or using these resources. We’re here to help!
Coronavirus update 19 October 2020 – lockdown restrictions ease