Many employers followed governmental guidance back in March to reduce the risk of the spread of COVID-19 by arranging for employees to work from home where possible. For many workers, shifting work to hastily assembled home workstations, with work interactions through videoconferences, has been the defining experience of the pandemic. Whilst changes to working arrangements of this nature have almost certainly contributed to Australia's success to date in keeping the infection rate low, they also imposed new work stressors on employees facing novel work challenges in comparative isolation.

As governments ease restrictions to reinvigorate the economy and ease psychological stressors on the population, employers are faced with a delicate balancing act – regaining productivity whilst mitigating the dual WHS risks of a workplace COVID-19 outbreak and damage to mental health.

Prime Minister Scott Morrison has announced 10 National COVID-19 Safe Workplace Principles (National Workplace Principles) to underpin Safe Work Australia's workplace health and safety (WHS) guidance.

The National Workplace Principles are summarised below:

1. All workers have a right to a safe work environment.
2. WHS must be approached from the perspective of COVID-19.
3. Employers must assess work practices to identify risks and implement and review control measures addressing those risks.
4. WHS practices must remain consistent with advice from health authorities as COVID-19 restrictions begin to relax – social distancing and hygiene remains crucial.
5. Employers must actively control against the spread of COVID-19 in their workplace, consistent with the latest advice from the Australian Health Protection Principal Committee.
6. Employers must prepare for a possible influx of COVID-19 in their workplace and be ready to respond in accordance with advice from health authorities.
7. Existing state and territory WHS compliance and enforcement jurisdictions remain critical. However, employers should take a consistent national approach, including communicating best practice in prevention, mitigation and response to the risks presented by COVID-19.
8. Safe Work Australia will provide a central hub of WHS guidance and tools to assist Australian workplaces in managing the WHS risks posed by COVID-19.
9. States and Territories will leverage the Safe Work Australia central hub to advise on and enforce WHS.
10. Safe Work Australia's guidance will be supplemented by the National COVID-19 Coordination Commission.

The National Workplace Principles provide guidance to employers seeking to mitigate risk to their employees and businesses in a WHS landscape altered by the COVID-19 pandemic. It is the blue print for the 'new normal' for workplaces.

At the same time, Safe Work Australia has advised WHS regulators across the country to focus on what is reasonably practicable for employers to implement to ensure a safe workplace during the exceptional circumstances posed by COVID-19. In particular, restrictions on employers caused by working from home arrangements, a shortage of hygiene products and an inability to provide face-to-face training will be taken into account.

The Safe Work Australia website has also been updated to provide detailed information on how to ensure a working environment safe from COVID-19. The website contains information specific to employers across 23 different industries.

Implementing the National Workplace Principles

Safe Work Australia has provided guidance on steps employers should take to ensure they are protecting workers from the risk of exposure to COVID-19 so far as reasonably practicable, including:

• creating a COVID-19 response plan;
• reviewing existing exposure and infection control policies;
• implementing safe systems of work; and
• monitoring the COVID-19 situation as it develops.

Practical steps for employers

The National Workplace Principles and guidance from Safe Work Australia provide a framework for employers to implement various practical measures to ensure they are meeting their WHS duties. The risk profile for employers in different industries will vary greatly, however some measures considered by employers may include:

• Preparation of a workplace response plan, documenting how COVID-19 issues will be dealt with in the course of a return to normal operations, including an outbreak of the virus in the workplace. Where possible, employers may consider obtaining professional health advice in developing their plans, as well as ensuring it is implemented on a national basis where relevant.
• Having a formal WHS risk assessment conducted ahead of formalising arrangements for a physical return to the workplace.
• Reviewing work arrangements to ensure adequate social distancing and hygiene measures are continued, including:

• considering a staggered return to work, by limiting employee numbers allowed to attend the workplace at any one time and continuing partial work from home arrangements where possible;
• implementing increased workplace hygiene measures including increased workplace cleaning schedules and provision of adequate personal hygiene products and personal protective equipment; and
• encouraging individual modes of transport to the workplace as far as possible, for example by making car parking or bike storage available to employees, to reduce the need for employees using public transport.

• Engaging in ongoing consultation with employees and, where relevant, Health and Safety Representatives to identify workplace risks posed by COVID-19 and implement safe systems of work based on advice provided by health authorities.
• Recognising that for some employees, physically returning to work may feel premature and become a source of anxiety. Employers should consider putting additional support in place to reduce anxiety or stress among employees. This could include 'buddying' colleagues, regular support meetings in the workplace, and offering access to an employee assistance program or other external counselling.
• Managing employee stress levels by acknowledging their feelings about the conditions caused by COVID-19 and consulting them about any risks to their psychological health. Maintaining workplace information in a central hub such as an intranet website may also be an effective means of reducing employee stress levels by providing easy access to information during an uncertain time.
• Taking reasonably practicable steps to identify the risks of family and domestic violence, such as providing a safe environment for disclosure, ensuring confidentiality and not requiring employees to divulge unnecessary personal details. Employers should consider circulating a family and domestic violence policy, which may need to be adapted to accommodate for the circumstances of COVID-19, to facilitate communication with employees. If it is not possible for an employee to be safe at home, an alternative work environment must be provided, so far as reasonably practicable.
• Proactively responding to reasonably suspected cases of COVID-19 in the workplace by:

• isolating the employee suspected of having COVID-19 and providing them with appropriate personal protective equipment;
• seeking advice from state or territory health authorities;
• ensuring the affected employee has safe transport home, to a location they can isolate in, or a medical facility if necessary;
• directing other employees to leave the workplace and ensuring the workplace is thoroughly cleaned and disinfected before employees can return;
• identifying and informing any employees who have come into close contact with the affected employee and requiring them to self-isolate until the employee is confirmed negative for COVID-19 or for a 14 day period; and
• reviewing COVID-19 risk management controls in light of the incident and in consultation with employees to decide whether any changes or additional control measures are required.

• Assisting employees continuing to work from home by:

• providing guidance on ensuring a safe home working environment including an ergonomic workstation set up and how to avoid being sedentary;
• lending any necessary work station equipment to employees;
• maintaining regular communication with employees through videocalls; and
• appointing a contact person to whom employees can direct their concerns related to working from home.

• Identifying employees particularly vulnerable to COVID-19 such as Aboriginal and Torres Strait Islander employees aged 50 or older with one or more chronic medical conditions, employees aged 65 or older with one or more chronic medical conditions and employees with compromised immune systems, and assessing risk with consideration of these employees. When conducting a risk assessment for employees particularly vulnerable to the risk of exposure to COVID-19, employers must consider:

• the characteristics of the worker;
• features of the workplace; and
• the nature of work.

• Ensuring physical distancing is practiced in the workplace in accordance with the latest Department of Health (DoH) advice. DoH currently advises ensuring a physical distance of at least 1.5 metres from others and ensuring 4 square metres in the workplace per person reduces the likelihood of exposure to micro-droplets capable of transmitting COVID-19. Employers should consider and where necessary make adjustments to the layout of their workplace and workflows to maintain physical distancing.

Using the COVIDSafe app to assist WHS compliance

COVIDSafe is an Australian Government-developed mobile phone app that uses Bluetooth technology to monitor users' locations, to enable state and territory health authorities to contact trace people who have tested positive to COVID-19 and notify individuals who have come in close contact with them.

Use of the app may be an effective way for employers to quickly and effectively mitigate the risk of an outbreak in their workplace, however employers should exercise caution in encouraging employees to download and use the app.

The Privacy Amendment (Public Health Contact Information) Bill 2020 will make it an offence for an employer to require an employee to download or use the app, or to take adverse action against an employee on the basis that they refuse to download or use the app. Employers can be proactive in encouraging employees to download and use the app but must express that whilst this is desirable, it is not mandatory and will not affect their employment in any way.

Use of the app may also be an effective way to minimise any mental health concerns associated with a return to the workplace by providing employees with peace of mind knowing they have a way of monitoring the invisible threat posed by COVID-19.

COVIDSafe has faced some resistance due to privacy concerns around the collection and distribution of information obtained. It is advisable that employers who wish to encourage employees to use the app be across the details of how the app operates and to address any concerns about the privacy of their data and any information disclosed to their employer.

The road ahead

Even though the risks associated with COVID-19 will likely continue to fluctuate from week-to-week around the country for some time to come, taking the steps outlined above will position employers well to control those risks. A spike in the infection rate will require control measures to be tightened. As highlighted by numerous Australian political leaders, the degree to which all employers adhere to WHS best practice whilst ramping up productivity will significantly determine how like the 'old normal' the 'new normal' for workplace will be.

If you would like assistance in managing the safe return of employees to your workplace or have any questions about implementing the National Workplace Principles, please contact any member of the MinterEllison team listed below.