Victoria’s COVID-19 Workplace Directions

The Victorian Government’s new Workplace Directions impose a number of new obligations on all workplaces across Victoria. It is vital that employers and employees are aware of their obligations under the Workplace Directions, as a failure to comply may expose the workplace to significant health and safety risks and attracts significant penalties.

The obligations concern:

• when employers can permit workers or visitors to the workplace
• what additional health and safety and record-keeping requirements must be met
• implementing a COVIDSafe plan and undertaking regular risk assessments
• responses to suspected or confirmed cases of COVID-19 at the workplace.

Who can attend the workplace

From 11:59pm on Wednesday, 5 August 2020, regional Victoria is under Stage 3 restrictions and Greater Melbourne is under Stage 4 restrictions.

Workers in regional Victoria can only attend work on-site if it is not reasonably practicable for them to work from home. If workers do attend work, they must maintain physical distancing of 1.5m between themselves and others, wear a face mask (unless an exemption applies) and comply with all other government directions.

For those living in Greater Melbourne under stage 4 restrictions, workplaces must close down their operations unless the workplace is a ‘permitted work premises’ under the Permitted Worker Scheme, or its employees are working from home. For more information about the scheme, read our comprehensive guide here.

Areas in Greater Melbourne where Stage 4 restrictions apply can be found on the Department of Health and Human Services (DHHS) website here.

New health and safety obligations

The Workplace Directions provide for a range of new workplace obligations that apply to all employers in Victoria. Under the Workplace Directions, all employers who are permitted to have workers or visitors attend their workplace must take the following precautions:

• take reasonable steps to ensure employees wear a face covering at work, unless an exemption applies. For example, where the employee has a physical or mental health condition or a disability which makes wearing a face covering unsuitable, where the nature of the work means wearing a face covering creates a risk to health and safety, or where the employee is working by themselves in an enclosed indoor space
• keep a record of all employees and visitors who attend the work premises for longer than 15 minutes, unless an exemption applies. This record must include the first name, contact number, date, time and location of the work premises the person attended
• destroy a record of a person’s personal information obtained for the purpose of the Workplace Directions 28 days after the person has visited the workplace
• ensure any shared space, such as lunchrooms, comply with the density quotient calculated per the Workplace Directions (i.e. the ‘4 square metre rule’)
• display a sign at each public entry that indicates the maximum number of people that may be present in the space at a single time
• take reasonable steps to ensure that shared spaces are frequently cleaned and disinfected. For example, handrails and toilets must be cleaned at least twice a day.

COVIDSafe Plan

In Greater Melbourne, a DHHS compliant COVIDSafe Plan is required for businesses who have five or more workers attending the work premises. This plan must state how the employer will address the following health and safety issues:

• how it will implement the record-keeping obligations under the Workplace Directions
• the appropriate level of personal protective equipment to be worn at the workplace
• actions the employer will take to lower the risk of a COVID-19 outbreak occurring in the workplace (e.g. temperature checks)
• processes the employer has implemented to respond to suspected and confirmed cases of COVID-19.

The Workplace Directions place additional obligations on employers within particular industries, including supermarkets, meat processing facilities and retail facilities. Employers in these industries are considered ‘high risk’ and must implement a High Risk COVIDSafe Plan, regardless of whether or not they are located in Greater Melbourne.

For guidance, employers can access COVIDSafe Plan and High Risk COVIDSafe Plan templates from the DHHS here.

When and how to conduct a risk assessment

Employers should be regularly assessing the risk of COVID-19 in the workplace. The Workplace Directions expressly create a duty on employers to conduct a risk assessment when three or more suspected cases of COVID-19 occur at one workplace within a five day period, or if there is a confirmed case of COVID-19. Employers are obliged to comply with this risk assessment in addition to the usual occupational health and safety obligations to ensure their workplace is free of health and safety risks.

When conducting a risk assessment, an employer should ensure it keeps a written record of its decision-making as to whether the premises should be closed in part or in full (or at all), the extent of cleaning required (if any) and whether contract tracing is necessary. Employees and health and safety representatives should be consulted during a risk assessment process and any applicable workplace health and safety procedures should be followed. Things employers should think about when conducting this risk assessment include:

• the extent to which the worker has had contact with others
• the extent to which others need access to the areas of the workplace the worker has been in
• how essential it is to continue operating until the risk is appropriately managed.

Responding to suspected and confirmed cases of COVID-19 in the workplace

Both employers and employees have a number of obligations under the Workplace Directions and the Occupational Health and Safety (COVID-19 Incident Notification) Regulations 2020 (OHS Regulations) regarding what to do if there is a suspected or confirmed case of COVID-19 in the workplace.

Suspected cases

If an employee displays symptoms of COVID-19, they must not attend work and their employer cannot require them to attend work. If an employee is symptomatic and has attended the workplace in the period commencing 48 hours before the onset of symptoms, the employer must, as soon as practicable after becoming aware:

• direct the employee to immediately self-isolate
• advise the employee to get tested for COVID-19 as soon as practicable
• take all reasonably practicable steps to manage the risk posed by the suspected case of COVID-19 by cleaning areas used by the employee
• direct all employees to be tested for COVID-19 and to self-isolate if they become symptomatic.

Confirmed cases

If an employee tests positive for COVID-19, they must inform their employer as soon as practicable and the employer must then notify WorkSafe and the DHHS. Failure (by either party) to do so is a breach of the Workplace Directions and OHS Regulations, and attracts significant penalties of up to almost $20,000 for individuals and $100,000 for companies.

After becoming aware of a confirmed case of COVID-19, the employer must conduct a risk assessment and comprehensively clean the workplace, or the part of the workplace the diagnosed employee worked in the preceding 48 hours. Employers must then notify all workers that an employee has tested positive and ensure its records are maintained to support contact tracing. Employers should then determine who the close contacts are so they can be notified, self-isolate and get tested.

Authors: Charles Power, Ben Holding, Ella Clements & Stefania Silvestro

Disclaimer
The information in this publication is of a general nature and is not intended to address the circumstances of any particular individual or entity. Although we endeavour to provide accurate and timely information, we do not guarantee that the information in this newsletter is accurate at the date it is received or that it will continue to be accurate in the future.

Published by:

Charles Power

Ben Holding, Ella Clements, Stefania Silvestro

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