Welcome to Sisters In Law, news.com.au’s weekly column solving all of your legal problems. This week, our resident lawyers and real-life sisters Alison and Jillian Barrett from Maurice Blackburn advise about your rights when it comes to work restrictions due to Covid-19.
Question:
I work in an office that’s mainly staffed by young, fit and healthy people, we certainly don’t have anyone with major health issues working with us.
As Covid cases are rising again, my boss emailed around saying we have to wear masks in the office now which I’m not happy about.
That same boss makes it difficult to work from home and has said we need to be in the office at least 80 per cent of the time.
Can they force us to wear masks when we’re all vaccinated and low risk? It’s getting silly now! – Jeremy, Vic
Answer:
The Victorian Government only recommends wearing a mask at work if you are a close contact to someone with Covid-19; have Covid-19 yourself, are indoors and cannot socially distance; or you work in a sensitive setting such as hospitals and aged care facilities.
We’ve assumed that you don’t work in a hospital or aged care facility.
There are currently no state or federal mandates requiring you to wear a face mask while at work.
However, an employer is able to direct its employees to wear a face mask if they have consulted with you on health and safety risks and they decided it is necessary to minimise the spread and risk of exposure to Covid-19.
This may apply if you work in an industry that has frequent face-to-face contact and physical distancing is difficult to maintain. It’s not clear if you work in this type of environment, or if your employer has consulted its staff.
If an employer issues a lawful and reasonable direction, you are required to follow it. Failure to do so could mean disciplinary action is taken against you.
Employers have a responsibility, so far as is reasonably practicable, to provide a safe working environment which means implementing controls to minimise risks of Covid-19 in the workplace. Your employer may be attempting to do this by requiring you to wear a mask. This will not be a lawful direction if they have not consulted with employees about this requirement.
Finally, you’ve mentioned that your boss has made it difficult to work from home. Given there are no current government mandates to work from home, employers can direct their employees to work their normal hours as long as the requirement is lawful and reasonable. This includes returning to the workplace.
Employees may, in some circumstances, be able to refuse to return to work because of a reasonable concern about their health and safety. If you have a concern about being in the office then you should raise this with your boss as soon as possible.
Your boss should let you know what steps they have taken to ensure a safe workplace, including the ability to socially distance.
If you refuse to comply with a reasonable direction from your employer to return to the office then your employer may take disciplinary action against you. This could include a formal warning or termination of your employment.
Under the Fair Work Act there are only a few instances where workers have the right to request flexibility in their working arrangements (which includes working from home), and employers are obligated to consider them. These instances generally relate to providing care, if the employee has a disability, is 55 years or older, or is experiencing violence from a family member.
Based on the limited information you have provided, it’s likely that your employer’s requirement to be in the office 80 per cent of the time is lawful and reasonable.
This legal information is general in nature and should not be regarded as specific legal advice or relied upon. Persons requiring particular legal advice should consult a solicitor.
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