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Victoria’s COVID-19 Lockdown: Facemasks and Other FAQs

Published July 21, 2020 (last updated February 11, 2021) -
man wearing facemask during victoria covid lockdown

Employers in Victoria, particularly in Melbourne and the Mitchell Shire, have been impacted by the recent lockdown order, and other related health orders such as enforcing the wearing of facemasks in public places.

This blog will give some initial advice about how to comply with these Government regulations, and hopefully bring employers and small business owners some peace-of-mind that they’re receiving advice from employment relations experts.

1 – I Heard That Victoria Now Requires People to Wear Masks In Public And I Am An Employer In Victoria. What Does This Mean for Me?

To comply with your work health and safety obligations, you must take reasonably practicable steps to ensure your workers’ health and safety in the workplace. This means reviewing and observing current health advice with respect to social distancing, infection control, and other measures to prevent the spread of coronavirus. It means directing workers who can work from home to work from home.

From Victoria’s requirement to wear a face covering in public in restricted areas, it follows that it is a further reasonable step in metropolitan Melbourne and Mitchell Shire for employers to require workers to wear face coverings, such as cloth masks or surgical masks, when in public and if social distancing is not possible or difficult. Employers may also need to:

  • have a supply of clean face coverings available for their workers to use
  • ensure that reusable face coverings are washed and handled safely
  • develop and implement protocols addressing the safe use, storage, decontamination and disposal of face coverings
  • train workers in face covering protocols to ensure that their use is effective

Any of the above steps should be identified and implemented as a part of a risk management process in consultation with your workers.

The Victorian Government has signalled that WorkSafe Victoria will focus compliance inspections and enforcement efforts in ‘at-risk businesses’ including call centres, distribution centres, and meat processing centres. If you operate one of these types of businesses, carefully review WorkSafe Victoria’s advice here when conducting their risk assessments and to ensure compliance.

Further restrictions have been announced but not yet published as at the date of this document. Victoria also has information on the use of face coverings.

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2 – Can We Prevent Employees Who Live in Hotspots from Attending Work?

It is recommended that you first conduct the risk assessment process to identify whether there is, in fact, any risk that the employee may transmit coronavirus to another person. Part of this process will include gathering evidence of the risk e.g. by reviewing the Government’s public health advice and asking the employee questions to determine if they meet the ‘high-risk criteria’ to help prevent the spread of coronavirus. Clients can review the information available here for further work health and safety guidance.

That the employee lives in a hotspot area, alone, may not be enough to exclude the employee from the workplace on health and safety grounds.

Despite that, you can discuss with your employees whether:

  • they can work from home or could perform alternative duties to work from home. If so, current restrictions in Victoria, for example, require an employee to work from home
  • they wish to take any accrued annual leave or long service leave entitlements by agreement for the duration of the current lockdown
  • (if in receipt of JobKeeper), they could be requested to work at different locations, on different days, or at different times, or to take annual leave
  • they could be directed to take annual leave (depending on the employee’s award)
  • (being a regular and systematic casual) they agree to not have any shifts until the lockdown ends

You can take the commercial option to exclude employees living in hotspots from the workplace but must continue to pay permanent employees for their ordinary hours where they are ready, willing, and able to work.

You may be exposed to the risk of discrimination complaints by excluding employees from the workplace (with or without pay) if it is not considered reasonable to ensure health and safety in the workplace.

Refer to the Absence Options for further guidance.

3 – What Leave Is Used for an Employee Required to Be Tested For COVID-19?

  • If the employee is permanent and fit for work, you can allow them to access annual leave or long service leave entitlements if they are fit for work for the time required to take a COVID-19 test and wait to receive the results. Otherwise, you could allow the employee to take unpaid leave.
    Other types of leave (e.g. unpaid pandemic leave) may be available to the employee depending on their award
  • If the employee is permanent and unfit for work (e.g. they are unwell, but it is not known if they have coronavirus), the employee can take paid personal/carer’s leave (if accrued) or unpaid leave
  • If the employee is permanent, was fit for work but then tested positive to coronavirus, the employee could take personal/carer’s leave from when their diagnosis was confirmed
  • If the employee is casual, they could access any long service leave entitlements or unpaid pandemic leave depending on their award. If the employee receives a positive test result for coronavirus, they do not get paid personal/carer’s leave

4 – My Workplace Complies with All Health and Safety Advice, but the Employee Is Refusing to Work. What Now?

  • Employers complying with all of the Government’s COVID-19 requirements for providing a safe workplace can reasonably direct the employee to attend work
  • Employees must comply with lawful and reasonable directions. Employers may choose to take disciplinary action against an employee failing to follow a reasonable direction
  • However, refer to the Reopening Your Workplace Guide for further information on vulnerable workers or employees required to care for vulnerable persons

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