Workplaces hit hard by Omicron Wave: Impact of the latest public health orders

In only the last few weeks, workplaces have taken a major hit due to the surge of Omicron. With case numbers now in the tens of thousands, Omicron poses enormous challenges for the community, supply chains, and the workforce across New South Wales.

To ensure that essential services such as supermarket chains and healthcare remain open, under new public health orders the NSW government has shortened the self-isolation requirement for essential workers confirmed as close contacts (New Health Orders). The changes to the isolation requirements create a major dilemma for employers in essential industries. While, under the New Health Orders, it is not prohibited for certain essential workers to return to work after a now shortened period of self-isolation due to being close contacts, the presence of such workers in the workplace may give rise to increased liability of employers under the Work, Health, and Safety Act 2011 (NSW) (the Act).

To reduce the risk of breaching the Act and to manage this dilemma, employers must ensure that not only are reasonably practicable measures taken to mitigate or eliminate the spread of COVID-19 in the workplace, but such measures are enhanced. In other words, now more than ever should employers enforce measures including regular rapid antigen/PCR test reporting, mask-wearing, rigorous cleaning, hand sanitising, and social distancing, to ensure adaptation to the significantly more transmissible Omicron strain and WHS obligations are still being met. In addition to the challenges faced by employers to maintain a safe workplace while workers return to the workplace following shorter self-isolation periods, there are now rules for employers to also report workers diagnosed with COVID-19 to SafeWork NSW under other new public health orders.

The new relevant provisions contained in the Public Health (COVID-19 Self-Isolation) Order (No 4) 2021 (NSW) (the Self-Isolation Order) are relevant for both employers and employees. Under the Self-Isolation Order, workers must, immediately after receiving notification that they have tested positive for COVID-19, take reasonable steps to notify their employer of their positive test result. For employers, the Self-Isolation Order requires mandatory reporting of COVID-19 cases amongst workers of which employers become aware, if the COVID-19 positive worker attended the employer’s workplace while infected or it is likely that the person contracted COVID-19 in the workplace. Once an employer becomes aware of a worker with a COVID-19 diagnosis, the employer has 24 hours to report the outcome to SafeWork NSW under the Self-Isolation Order.

The various requirements under the Self-Isolation Order, and who they apply to, underscores the importance of having a comprehensive plan in place to bolster COVID-19 reporting procedures. While many employers have in force vaccine mandates to increase compliance with WHS obligations to maintain a safe workplace by requiring employees to be vaccinated, it seems COVID-19 Reporting Policies will similarly become an enforceable procedure used by employers, to ensure compliance with the latest Self-Isolation Order.

If you require further advice on the Self-Isolation Order of the WHS implications of the orders on your business, please do not hesitate to contact  Nick Stevens, Luke Maroney, Daphne Klianis or Josh Hoggett.

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