Josh Marchant and Paul Ronfeldt

COVID-19 and WHS/OH&S… a crash course for concerned contractors

Josh Marchant and Paul Ronfeldt

24 March, 2020

WHS/OH&S

As COVID-19 continues to spread, the seriousness of this unprecedented pandemic grows.  Businesses that remain operational must be aware of their WHS/OH&S obligations and responsibilities.  Following on from our earlier blog ‘COVID-19 and force majeure… are you feeling frustrated yet’, we seek to address some common queries in light of the evolving COVID-19 crisis.

 General Obligations and Responsibilities

All organisations have a primary duty to ensure, so far as is reasonably practicable, the health and safety of their workers and to ensure their health and safety is not put at risk as a result of their work.  In the COVID-19 era, this means employers should have a series of preventive strategies to minimise the risk of employees contracting or spreading the virus.  The importance of these strategies cannot be understated.  In addition to breaching health and safety laws, failure to implement effective strategies to minimize the risk of COVID-19 could lead to claims of negligence against the employer.

Employers also have a duty under WHS/OH&S legislation to inform employees about health and safety in the workplace.  Therefore, employers should provide frequent updates to their employees about the status of COVID-19 and what is required of them in order to execute their job and social responsibilities effectively.  Employers should consider creating or updating protocols regarding:

  • social distancing and personal hygiene;
  • safe travel to and from work;
  • more regular and thorough cleaning or disinfecting of work sites;
  • reporting of illnesses and return to work procedures; and
  • guests or third-parties evidencing they are safe to come onto site.

 Principal Contractors

Like all employers, principal contractors must eliminate or minimize any risks to health and safety so far as is reasonably practicable.  In general, principal contractors should have a work health and safety management plan, emergency plan and appropriate procedures to deal with the risk of employees contracting and spreading COVID-19.  Any amendments to existing plans and procedures should be documented and circulated to ensure all employees are aware of their responsibilities.  Where necessary, employees should be trained in any new or updated procedures.

Of course, any plans and procedures should be made in accordance with directives and advice from State and Federal Governments, and with regard to guidance material published by the regulators.

Generally, principal contractors are authorized to control their workplace.  This includes the management of a health and safety issue such as COVID-19.  All persons on site, whether an employee or not, must follow the directions of the principal contractor.  If the site becomes unsafe due to the risk of contamination or infection, the affected area must be disinfected.  If the principal contractor decides that a period of evacuation, isolation or shut down (of an area or entire site) is required to ensure the safety of the site, and no other control will adequately minimise the risk to an acceptable level, then they may consider issuing such directions.  However, it should be remembered that shutting down an entire operation is not the objective of the law if practical measures mean the site can still be run safely.

WHS/OH&S legislation does not entitle the principal contractor to immunity from the commercial ramifications of these directions.  How this is treated will be determined on a contract-by-contract basis.  Force majeure or suspension provisions may or may not provide relief depending on the contract.  As a result (and along with the industrial risk associated with ceasing to provide work and pay to employees), decisions to evacuate, isolate or shut down a site come with a high risk of commercial disputation.  Such decisions should not be made lightly.  The ramifications of a shutdown, evacuation or isolation on other parties (such as subcontractors) will also turn on the wording of the relevant contracts.

 Privacy Obligations

Employers may want to collect health information from employees regarding a COVID-19 diagnosis, exposure (i.e. from a spouse with a diagnosed case) and risk factors, to assist them to appropriately manage and address WHS/OH&S risks proactively and reactively. This information, when collected in relation to current and former employees, would be subject to the ’employee records’ (health information) exemption in the Privacy Act 1988 (the Act).  Therefore, it is okay for employers to ask for such information provided there is a proper purpose in collecting and storing this data.  The collection of this information should be in line with the employers’ privacy policy, and only the minimal amount of information as is necessary to enable the proper discharge of WHS/OH&S duties should be collected.

It is also permissible to disclose to others at imminent risk of serious illness/injury that a particular person, who should not be identified by name, has or may have COVID-19 if those people have been in close contact with the infected person.

Next steps for building industry employers

Building industry employers should proactively, now, update their policies and provide employees a written explanation of:

  • the need to collect and purpose of collecting COVID-19 health information from employees and others on site; and
  • the potential uses for that information and the circumstances in which that information could be disclosed to others.

The updated policy should be disseminated to all employees as soon as possible.

If you are uncertain of your obligations during this time we recommend you contact a member of our national Construction team to obtain legal advice.