My employer wants me to return to the workplace. Can I refuse?

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Covid Workplace

There’s an interesting workplace battle brewing around Australia between office workers and their employers.

With the pandemic under control, workers are being expected to return to the office. This has been occurring in New South Wales for some time but, in Victoria, the scheduled date for the ‘safe return’ to the workplace of up to 50 percent private sector workers and 25 percent of public sector employees is expected to be announced by the Government in the coming days.

Interestingly, a national survey conducted by the Fair Work Commission last year found that only about 5 percent of workers who were sent home to work during lockdowns want to return to the office on a full-time basis, and around 35% want to return on a part-time basis only.

While many employers have found that working from home has had negligible, if any, adverse effects on productivity, others believe it has indeed had a negative impact, and want to get things back to the way they were pre-pandemic, in order to start rectifying the economic damage done.

But what does the law say about returning to the workplace?

Can I refuse to return to the workplace?

In a nutshell, the law makes clear that if your workplace has a Covid-safe plan, your job requires you to be in the office and your employer says it’s time to return, then not doing so can result in disciplinary action or even termination.

Many employment law and HR experts suggest that there is room for further reform within current legislation to better protect worker rights and ensure safe workplaces as we move forward and begin to live with the reality of Covid.

Under the Fair Work Act, (the national legislation which regulates employment and employer/employee relations), there are only a few instances where workers have the right to make a request for flexible working arrangements, including work from home arrangements as well as flexible hours, and employers have an obligation to consider these.

These would include: if the workplace isn’t following a Covid-safe plan, if you are ‘at-risk’ – that is, have a medical condition which impacts your immunity, or makes you more susceptible to a respiratory infection, or you have been in close contact with, or need to care for someone who is Covid positive.

Recognising employee fears

Many employers are being flexible with their teams, and making arrangements for individuals based on their personal circumstances, and this is good news.

But it also needs to be acknowledged that the emergence of Covid clusters and hotspots over the December holidays has left a lot of people feeling vulnerable, and uncertain about the start to the new year. Front of mind is the fact that the virus is still active, and highly contagious. .

It’s only natural that some people will feel trepidation about being able to social distance adequately in an office space, having to use shared spaces and general hygiene standards in the office environment, as well as on their public transport commute.

Mental health considerations

And for anyone with mental health issues such as depression or anxiety these fears can be exacerbated. Furthermore, their condition may have worsened over the past several months. However, under the law, this is not necessarily a reasonable excuse not to return to work.

Employers must recognise that everyone will respond to the process of returning to the workplace differently. For some it will be difficult and stressful. For others it will be a welcome return to some kind of routine and normalcy.

At this time, employees are being encouraged to negotiate with employers and vice versa. These are unusual times, and while state and federal Governments are championing safe return to work because it’s a signal of productivity and good for the overall economy, in some cases, people will need more time and compassion from their employers and co-workers as they adjust to the idea.

Bringing employees back into the office may be something that should not be rushed.

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Sonia Hickey

Sonia Hickey is a freelance writer, magazine journalist, and owner of 'Woman with Words'. She has a strong interest in social justice and is a member of the Sydney Criminal Lawyers® content team. Sonia is the winner of the Mondaq Thought Leadership Awards, Spring 2022.

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