Covid 19 coronavirus: Employers urged to review masks, level 2 health and safety plans as workers return

Employers should be asking if staff need to be wearing face masks. Photo / File

Businesses are being urged to review their health and safety plans again as Auckland heads back to alert level 2 and many employees are allowed to return to their place of work.

Mark Lawlor, a health and safety employment legal expert at Duncan Cotterill, said under the Health and Safety at Work Act there were obligations on employers to maintain safe workplaces and to take all steps to ensure that.

On top of that, Lawlor said there was guidance around Covid-19 from the Government and WorkSafe.

Lawlor said while face coverings were not mandatory in the workplace under the current public health order, workplaces where people could not maintain social distance were encouraged to use them.

"As we return to level 2, employers are required to have a plan around returning to work safely. Part of that should be asking should we be encouraging staff to wear masks?"

Lawlor said it came back to what was reasonable and practical and would be a step that depended on the circumstances of the workplace.

He said some employers could require staff to wear face masks.

"I would have thought there will be a number of employers who do consider wearing face masks at level 2, at least for the next few weeks it would be a prudent step to take, particularly if you have got people working close to each other."

Lawlor said employers should also pay attention to advice from their industry body, which might have guidelines.

But he said any employer considering making staff wear masks should also consult them about it first. If the employer made it mandatory, then they should supply the masks, he said.

Lawlor said a lot of employers would have a check list setting out the rules for staff under level 2, such as reminding them about hygiene standards and not to come to work if they were sick or if someone inside their bubble was showing signs of having Covid-19.

Last time Auckland came down to alert level 2 there had been weeks of no or only a few cases of Covid, but this time a handful of cases are still being reported each day.

Lawlor said that risk was something employers had to take into account when assessing the risk to staff health and safety.

"We have a better idea now. We can have break-outs and so therefore need to be vigilant."

Anyone who had concerns about the health and safety in the workplace should talk to their employer first, but ultimately WorkSafe has oversight of employers.

Lawlor said it was possible there could be legal action taken over employers taking a lax approach to health and safety.

But if employers could demonstrate they had followed the guidelines and continued to assess and manage the risk, the prospect of prosecution was low.

Sherridan Cook, a health safety legal expert at Buddle Findlay, said for someone like a hairdresser who works in close contact with their clients it would be reasonable for an employer to require masks to be worn.

In an office environment - it would possibly only be required where employees can't maintain social distancing.

"Employers should consult staff on any policy to get their views and take those into account."

Cook said if masks were required, employers would have to train staff how to use them correctly and provide the masks.

He said if employers relied on staff to provide masks there might be issues with some not being able to afford them.

"If you are going to make it compulsory then you should be providing masks.

"I think most employers probably won't make them a requirement at alert level 2."

Cook said if an employer hadn't taken the appropriate steps to keep workers safe there was the potential for WorkSafe to take action or for employees to sue the company for not providing a safe workplace if someone contracts Covid.

There has already been legal action taken overseas. In the United States, five McDonald's workers in Chicago have filed a lawsuit against the company alleging it did not give workers enough masks, gloves and hand sanitiser to protect them from the virus.

In April, the family of a Walmart employee in Illinois who died from complications with Covid-19 filed a wrongful death lawsuit against Walmart.

"I probably wouldn't see that happening in New Zealand," Cook said.

FACEMASK

He said WorkSafe could prosecute if there was quite a bad breach. But that wouldn't just be about not providing hand sanitiser but more if there was an outbreak and the employer did nothing to prevent it.

Cook said WorkSafe should be policing employers around health and safety but appeared to be leaving it to the police and Ministry of Health.

"I think WorkSafe could be doing a bit more."

He said Australia's equivalent, Safework, been quite proactive. In Victoria, employers face a fine of up to $100,000 fines if they don't make sure employees wear masks and train them how to do so safely.

But he said it was also important to keep it in perspective as Australia had had 25,000 cases and New Zealand about 1700.

"Yes it is out there but not to the extent it is in other countries. I do think the Government has been a bit reactionary."

He said employers wanting to avoid any comeback from employees should look at the Government guidance and follow it.

"If anything happens and you have followed the Government guidance it is pretty unlikely any legal action will be successful."