The Victorian Chief Health Officer (CHO) has directed that all persons over 12 years old living in Victoria wear cloth or surgical face masks or face coverings outside of their home. This direction includes a requirement that employers must take reasonable steps to ensure that employees wear a face covering at all times when working at the employer’s premises.
INDUSTRIAL MANSLAUGHTER AND COVID
Industrial manslaughter occurs where a person (including corporation, but not including an employee), who owed a duty of care, breaches that duty by criminal negligence in circumstances where there was a high risk of death, serious injury or illness, the breach was done consciously and voluntarily and that breach causes death.
The appearance of Coronavirus clusters has led to the obvious question of whether an employer whose workplace causes an infection that ultimately leads to a fatality could be prosecuted under those laws? The short answer is yes. An employer that failed to take any steps to consider or manage the risks could face prosecution and this could extend to industrial manslaughter.
As such, an employer must ensure they take ‘reasonable steps’ to ensure their workers safety. Further reading on the interaction of these laws and Covid-19 can be found below.
Where the work or task requires the use of specific types of face coverings in the workplace, these must be provided by the employer.
The Chief Health Officer has directed that employers must take reasonable steps to ensure that employees wear a face covering at all times when working at the employer’s premises. Employees have a duty to cooperate with their employer’s actions to comply with their duties under the OHS Act.
Reasonable steps required by an employer to ensure their staff safety will include:
- have a supply of clean face coverings available for their workers to use
- ensure that reusable face coverings are washed and handled safely
- develop and implement protocols addressing the safe use, storage, decontamination and disposal of face coverings
- train workers in face covering protocols to ensure that their use is effective
Any of the above steps should be identified and implemented as a part of a risk management process in consultation with your workers.
CORRECT USE OF MASKS
Face masks and coverings are only effective when they are worn and maintained correctly. For example, it is very easy for a face mask to lose its effectiveness if it does not fit, if the front is touched whilst wearing it, or if it is not washed or disposed of appropriately.
Employers must provide information, instruction, training and supervision to employees and contractors on:
- when face masks and/or face coverings are to be worn
- how to put on and wear face masks and/or face coverings correctly to ensure they are effective
- how long face masks and/or face coverings can be worn
- how to remove face masks and/or face coverings safely, including changing masks during shifts
- how to safely store and wash reusable face masks and/or face coverings or dispose of single use masks
It is particularly important to provide training for reusable cloth masks, including for cleaning and storage.
Employers need to provide appropriate hygiene amenities for employees to safely put on and remove masks, such as hand washing facilities or alcohol-based hand sanitiser. Where employers provide reusable masks, they should provide facilities for cleaning the masks.
Employees have a duty to take reasonable care for their own health and safety, which includes following the information, instruction and training provided on how to correctly wear their face mask.
Employers and self-employed persons, with management or control of a workplace must notify WorkSafe immediately after becoming aware that:
- an employee, independent contractor, employee of the independent contractor or self-employed person has received a confirmed diagnosis of coronavirus (COVID-19) and;
- the employee, independent contractor, employee of the independent contractor or self-employed person has attended the workplace within the relevant infection period.
HOW TO COMPLY?
These requirements do add to the complexities of running a business and will present some big challenges for employees, however
We would recommend businesses follow these steps to ensure they are taking ‘reasonable steps’ to provide a safe workplace.
- Any worker who can work from home should work from home;
- Provide face masks for any staff or contractors that work from your premises;
- Communicate with your employees on the steps you are taking and what they are required to do take care of themselves and other staff;
- Train staff on how to properly wear a face mask;
- Notify worksafe if an employee, contractor etc is a confirmed case and attended the workplace within the infection period; and
- Ensure your own work practices or conduct does now tacitly authorise noncompliance, or fails to create a culture of compliance within the workplace.
Further reading on these requirements can be found at