With the continued easing of restrictions across Australia, more and more businesses will be looking to transition employees from home (whether on a working from home arrangement or due to a period of stand down, leave or reduced hours) and back into their physical workplace. Just as transitioning employees out of face to face operations came with a range of challenges, so too will bringing them back to their usual workplace. Now is the time to consider how this will work for your business in practice and take steps to ensure the process is as smooth as possible, whenever that may be.
In this article, we set out our key considerations for businesses managing this transition. You can also find a link to a recording of our recent webinar on this topic here.
The first important consideration in transitioning employees back to the physical workplace is the timing. Keep a close eye on the directions and advice released by Federal and State governments to understand what your business can and cannot do.
Restrictions vary between States / Territories and are constantly being updated, so it is critical to be across the detail and seek advice if needed. In some states there are government directions in relation to employees working from home. There may also be restrictions that apply to the number of employees who are permitted to be in physical workplaces at the same time to ensure that appropriate social distancing is maintained.
We also recommend that prior to returning employees to the workplace, employers closely consider their operational needs and what will work best. Just because your employees can return to the physical workplace, should they? And do they all need to do so at the same time?
Creating an appropriate internal team, to ensure that workforce, operational and other dimensions are all properly considered is critical.
For most businesses it will be appropriate to stagger employee returns, rather than attempting to simply have all employees return together. Many workplaces are looking at implementing different ‘shifts’ to avoid having the whole office at work at the one time and to comply with social distancing requirements. For those businesses that transitioned to working from home arrangements, it may be appropriate / desirable to have some employees continue to work from home for part or all of the week.
Understandably, most employees are likely to have some concerns about returning to work. The key to alleviating these concerns prior to any return will be clear and ongoing communication and consultation. Advising employees of the plan for the return and the steps being taken to address risks will be important. Consider whether this will be by way of a ‘town hall’ communication, email and/or individual consultations. For unionised workplaces, it will be important to ensure that the relevant union is consulted and is satisfied that all necessary steps have been taken to ensure a safe return.
Feedback, comments and queries raised by employees during the consultation process, particularly around safety measures, should be given prompt and genuine consideration. Businesses should also note their consultation obligations under any applicable modern award or enterprise agreement and ensure compliance.
Consider what (if anything) was changed at the time employees transitioned out of the workplace. Employees may have reduced their hours or salary, been stood down or taken a period of leave, including by way of directions under the JobKeeper scheme. Employers should look at whether such arrangements should continue, be varied in some way or whether employment terms can revert back to normal. Any changes will need to be properly documented.
Businesses should also ensure they have appropriate policies and procedures in place to deal with the ongoing challenges posed by the COVID-19 pandemic, including policies on:
Employers should ensure that their policies are flexible enough to adapt and evolve with COVID-19 developments and any government initiatives to limit potential transmission.
Consider how you will discharge your obligations to ensure the health, safety and welfare of employees and other persons in your workplace, as far as is reasonably practicable. Businesses need to assess their risks, eliminate or implement control measures for those risks, and have these documented in a COVID-Safe Plan. Consultation with employees on safety will also be important.
Measures to keep employees safe include:
Businesses should also consider whether any employees need to be re-trained or re-inducted into the workplace. Consideration should certainly be given to training employees on necessary hygiene and cleaning protocols.
There are a range of useful free resources available to assist businesses in managing health and safety concerns, including publications issued by Safe Work Australia, the National COVID-19 Coordination Commission and State / Territory safety regulators.
Employers should also consider what kind of arrangements can be put in place for vulnerable workers, such as those with medical conditions, mental health conditions and those who are over 70 years old. These employees may need to continue to work from home or have additional safety measures put in place to protect them to allow them to safely return.
Some employees will be reluctant to return to the physical workplace. Such reluctance may stem from genuine concerns for their own health (given age and/or pre-existing medical conditions) or that of those they are in close proximity to outside of work. Some employees may have anxiety about leaving self-isolation, travelling on public transport and/or working in client facing roles. Others may simply wish to continue to work from home as a matter of preference.
The question for employers will be whether any direction to return to the physical workplace is a ‘lawful and reasonable’ one in all of the circumstances. Importantly, employers will need to understand and consider an employee’s individual reasons for any refusal. Where an employee has a medical issue or someone they care for / live with does, an employer should request medical information to support the employee’s reason for not wanting to return to the physical workplace.
Depending on the circumstances, some employees may be able to continue to work from home or be able to take paid personal / carer’s leave or access other leave accruals.
In the remainder of circumstances, it may be that employees can be reasonably directed back to the workplace where they do not have a genuine reason for not returning.
Employers should consider how they can support employees on their return. Checking in on employees and ensuring your communication is ongoing and empathetic will be essential. If you have an Employee Assistance Program, ensure that all employees have the details, as well as easy access to all relevant policies.
It will be important to live and breathe a safety culture, in which social distancing and hygiene is maintained by employees and other workplace participants at all times.
In addition to considering the shorter term steps which need to be taken to transition workers back to the workplace, employers will need to consider what their business looks like now, how this may be reflected in the longer term, and whether restructuring is necessary in light of the economic impact of COVID-19.
It may be that the crisis has highlighted roles that are not required on an ongoing basis and/or new roles which are critical for the business going forward. In doing so businesses need to consider their risk profile and follow a proper process, including by consulting with employees and looking at redeployment options.
The road back to the physical workplace will raise a range of tricky issues for employers, many of which will need to be dealt with on a case by case basis. The Employment Advisory Team at Gadens is well placed to assist businesses with this transition.
For details of all our COVID-19 tips and updates, visit the Gadens COVID-19 Hub.
Brett Feltham, Partner
Siobhan Mulcahy, Partner
Emma Moran, Senior Associate
Claire Duggan, Associate