Getting ahead of the (COVID) curve

Seyfarth Shaw LLP

All the modelling done and released by our governments to support the roadmaps out of lockdowns tell us the same thing: as our businesses and borders reopen, the COVID numbers will increase. We will need to learn to live with the virus. Given this, it is likely that a lot more workers will get COVID and transmit it to others.

The key question for every business leader to consider is how will you plan now to be ready for this next phase?

Many or all of the COVIDSafe measures that businesses have now respond to a pandemic with low community transmission. Reopening with higher community transmission rates presents a different risk profile for businesses. Vaccination has formed a key part of the public debate about how to keep workers safe. But it is not the only issue here that employers will need to navigate (particularly in those states, including Victoria, where industrial manslaughter is a criminal offence).

Some of the other bigger picture issues that Boards and business leaders should be thinking about now include:

  • Ensuring sufficient resourcing and processes are put in place to support the challenge of remaining up to date with changing and varied government requirements, public health advice and best practice guidance as things change quickly. Already stretched HR and Operations teams are likely to need additional support, to assist with changes and deal with employees who object or fail to comply, particularly given the myriad of other people challenges that have been triggered by the pandemic.
  • Planning for a localised outbreak as for any other business interruption as part of the risk register. This includes contingency planning if a large number of employees are forced into self-isolation (as we have seen recently among large employers and in some country towns).
  • Taking a rigorous and broad risk assessment and mitigation approach to protecting the health and safety of employees and contractors that includes environmental factors that could contribute to outbreaks with unknown sources. For example, several outbreaks have been linked to ventilation system issues in hotel quarantine, which has also been highlighted as an issue by the ACTU. How many employers have included building design and ventilation as potential infection sources in the planning to date or considered what (if anything) can be done?
  • Identifying commercial tensions and how they will be managed. What happens if a key client of a business says ‘we’re not happy to have our confidential information at employees’ homes’? Will the business’s response be to require on-site work (where permitted by law) or is that a relationship issue to be addressed with that client?
  • Mental health will need to be a continued area of focus as we know that all the predicted changes (higher case numbers, more hospitalisations, changing government requirements which are likely to result in uncertainty about work arrangements) can all contribute to mental health concerns.
  • Anecdotally, many companies have experienced spikes in employee grievances during the pandemic. Employees who raise concerns about COVIDSafe arrangements at work could be making legally protected whistleblowing disclosures, even if that is not how the complaint is described by the employee. Managers and senior business leaders who might receive these complaints should ensure that they know how to spot them, how to deal with them and what their (personal) obligations are as the recipient of a legally protected whistleblowing disclosure.

Employers who work through the above issues will be best placed to support their people, take advantage of opportunities to implement new systems and processes now (before community transmission increases further) and protect their business and the safety of their people and clients. We know that those that get this right will position themselves well for the future.

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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