When can an employer direct a worker to stay away from their usual place of work under the model WHS laws?
Frequently asked questions about COVID-19 and safety in the workplace.
There is nothing in the model WHS laws that deals expressly with when an employer may direct a worker to stay away from their usual place of work. This includes when you can direct a worker to work from another workplace, including from home. Note: the model WHS laws have been implemented in all jurisdictions except Victoria and Western Australia.
However, the model WHS laws require you, so far as is reasonably practicable, to ensure the health and safety of their workers and others at the workplace. To meet this duty, you must identify risks at the workplace, and do what is reasonably practicable to eliminate those risks, or where this is not reasonably practicable, to minimise those risks.
For example, you may undertake a risk assessment and form the view, based on all the available information from health authorities and having consulted with your workers, that an appropriate control measure to eliminate or minimise a risk to workers and/or other people at the usual workplace, is to require workers and other people to stay away from the usual place of work. Depending on the circumstances, you might also determine that it is appropriate for workers to work from another location, including their home.
For other employers this approach may not be reasonably practicable (e.g. a workplace that relies on specialised plant or equipment) but there might be other controls that would minimise the risk of infection such as implementing other forms of social distancing or delaying non-essential tasks. There is no one size fits all approach.
The important thing is that you actively consider the context of your business or undertaking, the specifics of your workplace and all the workers and others to whom you owe a WHS duty and take every step you reasonably can to eliminate or minimise any risks to health and safety.
Of course, if you know a worker is confirmed to have COVID-19, you should ensure that the worker does not return to work while they are infectious. If you notice a worker exhibiting other signs they may be unwell (e.g. frequent sneezing) and you consider they are unfit for work, you should follow your usual workplace policies and procedures. This may include directing the worker to go home.