Workers’ Compensation Insurance Bulletin 7: Re-opening Australia: Work after COVID-19

work after covid-19
RETURNING OUR WORKFORCE TO BUSINESS AS USUAL

There was a collective sigh of relief around the country as each of the State Governments enacted the first phases of the recovery plan to reopen Australian business and get people back to work and our focus moved from health management to economic recovery. Unfortunately the experience in Victoria has shown that a new balance may need to be found between the speed with which this occurs, and the urgency with which people return to their workplaces. Prior to the infection spike in Victoria, a number of Workers’ Compensation jurisdictions were experiencing an increase in anxiety and psychological injury claims linked to COVID-19 and returning to work and the Victorian experience may only serve to increase people’s level of anxiety as the way forward continues to fluctuate and change in the coming months.

The remaining States and Territories seek to resume business as usual activities and this bulletin is designed to provide some insights into people management strategies which may reduce the potential for interpersonal conflict and disagreement:-

Workplace health and safety

  • If your business has been closed for the last few months, are there pieces of equipment or machinery which need to be inspected, tested or serviced before placing them back into service or use? Ensure workers are aware of start-up procedures for equipment and refreshed on safe operational procedures to reduce risk of injury, particularly if this has not been part of their recent normal daily routine.
  • Establish pre-commencement toolbox talks or meetings to allow staff to voice any concerns they may have about coming back to work and agree and implement strategies to address concerns.
  • Ensure you are compliant with the social distancing requirements for businesses and have established protocols to manage the number of employees and/or customers in your business at any one time.
  • Downloading the COVID-Safe app is voluntary however it could be a very helpful tool for businesses to get early notification if their staff have been exposed to someone who has the condition. Consider whether you can make the app available to staff who use smart phones or tablets for orders or other customer interactions. This way your employee is not forced to use the app on personal devices, but have access to it during work hours.
  • Familiarise the business with jurisdictional work health and safety incident notification requirements for COVID-19 cases which should include details on how and who to notify if required.

Agreeing the 'new normal' approach to work

For some, working from home will not end soon enough, for other employees however they may have found that this arrangement has suited them better, they feel more productive and may be resistant to returning to the old normal, preferring the new normal to continue. The timing of easing restrictions varies from state to state, so for national employers this may mean that a variety of working arrangements will be necessary for the short to medium term at least.  

Working from home has been a new experience for many, and some employees may feel that this way of working suits them better. For example, a reduced commute time may bring other benefits in the individual’s personal and professional life. The Fair Work Act requires an Employer to give any request for flexible working arrangements all due consideration and present valid business reasons why this cannot occur and to seek to reach a compromise wherever possible.  

There are a range of opinions about whether working at home or in a workplace is better or more productive.  Academic research has shown us that on average employees are only productive for 2 hours and 53 minutes whilst in the office (Barnes A, 2020) and that the remainder of the time is taken up with less productive or non-work related activities. There is anecdotal evidence, however, that the social connectedness of the workplace cannot be replaced with technology but that face to face interaction fosters innovation, collaboration and a common sense of purpose and whilst this interaction is not necessarily measured it would nevertheless be considered invaluable to the overall workings of a business.  

Employees may seek to negotiate long term changes to allow working from home on a part-time or full-time basis and it is important to refrain from sweeping generalisations about working from home but rather clearly define expectations of those who do need or want to work from home:

  • Take time to consider the impacts upon your business if more staff work from home permanently or part-time. For example which roles would be designated as required full time in the office and which are not?  What are the business reasons behind your decision making?  
  • Seek to get a better understanding of why a person does not wish to return to the workplace. Is it for convenience e.g. reduced commute, or does it relate to other office based issues which they are seeking to avoid e.g. poor interoffice relationships.
  • Be clear on how an individual’s productivity will be assessed during working from home periods.  For example:-
    -   It is expected that emails and telephone calls will be responded to within a set timeframe such as same day
    -   Align expectations around outcomes similar to those achieved when in the office
    -   Attendance at regular staff meetings to collaborate and share information
    -   Frequency with which you will touch base to check an individual’s progress and wellbeing
  • Consider the long term ergonomic set up of an individual working from home. The current environment may have been established in haste to meet the requirements of working from home but this may not be sustainable long term. Review the current set up to ensure there is no risk of injury through long term exposure to a poorly established home based working environment.
  • If you believe staff are not being productive or meeting expectations, address this early rather than wait for a person to be back in the office before performance concerns are addressed. Be sure to follow your current performance feedback processes to ensure due process is applied to all performance based conversations.
  • If it is not sustainable to support long term working from home and there is a timeline within which working from home is expected to cease, communicate this either at the commencement of the arrangement or as soon as possible once a return to the office date is set. This allows arrangements to be made by the individual to return to work when expected. Short notice may not be considered reasonable, depending on the person’s circumstances.
  • Your answer to a request to continue working from home may be a 'no', however, with an appropriately framed response, allegations of unfair treatment are less likely to be successful. 

If your answer is 'yes', you will need to discuss and agree 

  • how productivity outside the office is to be measured, 
  • how and when interactions with the workplace are to occur and,
  • frequency of time at the workplace if such is required.

Negotiating and agreeing all aspects of any new working arrangement may avoid disagreements later if the agreement does not work as planned. Seek a compromise arrangement wherever possible to best meet the needs of the employee and the business.

Returning to the workplace

For many workplaces, having an at home workforce is not a viable alternative longer term and the focus should therefore be on bringing staff back into their work environments.  It is important not to lose sight of the levels of anxiety which remain in the community, particularly those within vulnerable households or with underlying medical conditions. This may bring a heightened level of anxiety to any discussions about coming back to work.

Consider the following elements as you prepare to communicate with your staff on when and how to return to work:-

  • If the Government advises staff to remain working from home if they are able to do so, it is important that staff do not feel pressured, implied or directly, to return to the office on the basis that some of their colleagues have already done so or have agreed to return.  If staff are anxious about returning a graduated return to work approach may be beneficial and allow confidence to build around using public transport or to see how social distancing will work in the workplace and to feel safe in that environment.
  • Workforce planning is important. It may not be necessary or possible to return all staff to work at the same time, and this may be gradual based on business activity levels. When deciding who is to return to work and when, it is important that staff selections are made on their skill sets, seniority level in the business and the work they will be undertaking. If selecting one staff member over another, it is important to take notes of your reasoning. If the majority of a department is returned and some others are asked to return at a later date, it is important the reasons for this decision are conveyed to the individuals.

Staff entitlements during COVID-19 restrictions 
Staff are entitled to accrue annual leave and long service leave while stood down from work due to COVID-19 restrictions. In some cases staff can elect to use their long service leave and annual leave as income support, and when receiving such requests it is recommended that specialist HR and legal advice is sought before refusing any requests. These special provisions are in place until 26th September, with the option to extend out to 26th March 2021.

This may be an option for staff who are not required to return to work immediately but who need ongoing financial support in addition to JobKeeper or once JobKeeper ends.
 

Cessation of JobKeeper
It is hoped that a re-opening of the economy and access to JobKeeper payments will provide business with sufficient time to be able to support staff to retain their roles once the Government stimulus ceases on 30th September.  Unfortunately redundancies may be unavoidable.  In these circumstances it is the role that is made redundant not the individual and it is important that due process can be demonstrated should it be necessary to justify the decision making process at a later time.

  • If there are staff who are qualified for a reduced number of roles, it is important to undertake an assessment of each individual who currently sits in the roles impacted to assess who will be made redundant and who will not. A consistent and transparent analysis based on the merits of the individuals impacted by a reduction in job roles will provide clarity when having discussions with staff and provide background in the event a person alleges they have been disadvantaged through the process.
  • When considering termination of an injured employee who is in receipt of workers’ compensation benefits it is important to consider:
    -   Is it permissible to terminate a person in receipt of workers’ compensation based on the duration of the injury?  This will differ from State to State.
    -  Understand the financial ramifications of terminating an injured employee on your workers’ compensation premium.  Dependant on the age of the employee, the nature of the injury, current stage of recovery and the State the person is employed in, the premium cost impact may result in a much higher overall cost to the business.
    -   If termination of an injured employee is unavoidable, consult with your Lockton Associate and Claims Agent as soon as possible to ensure appropriate steps are in place in relation to the claim and to support your former employee as they continue through their claim journey.

Mental health in the workplace

Since the commencement of the economic hibernation caused by COVID, an additional 92,000 Australians have accessed mental health services.  The level of concern and anxiety is not to be underestimated in our communities and this translates into our workplaces.  The National Cabinet has signed off on a $48.1 million investment in a coordinated national mental health plan and investment in resources.  The national plan can be accessed via the following link: National Mental Health Plan

Early identification of mental health issues is fundamental to the wellbeing of employees so assisting staff to access mental health services if required is key to helping your employees cope with the changes brought about by the pandemic. This can be through an Employee Assistance Program should such be available to your employees, or alternatively by accessing services listed on State Government web pages, which are specifically geared towards helping people deal with their current situation. If you identify an employee is not coping, becoming disengaged or displaying unexpected changes in behaviour, it is important to reach out and seek to provide support wherever possible.  

Regrettably, in some circumstances, mental health issues may play out in either the Fair Work or Workers’ Compensation jurisdictions, particularly if a person makes allegations of bullying or harassment during the return to work period. It is becoming clear that allegations of work-related anxiety injuries are on the increase with some jurisdictions reporting notable increases in the volumes of claims being received for these type of injuries.

We are all living in trying and challenging times and the resilience required to cope with change and uncertainty is an individual personality trait.  Some of your employees will cope better than others.  Clear, transparent, equitable communication with your employees may assist in preventing further unnecessary strain on your employees and your business.


References
Barnes A, J. S. (2020). The 4 Day Week, P.g. 17. London, UK: Piatkus.

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