All employees have the right to a healthy and safe working environment. The ongoing risk of COVID-19 and other contagions spreading through open plan office arrangements (also known as hot desking or activity-based working) has brought into question the future of physical work and open plan offices.
Workplace design experts have recently compared offices to cruise ships because of their incubatory potential. Contact tracing data from around the world has revealed that the risk of transmission of COVID-19 is exacerbated in workplaces with higher personnel density. South Korea’s Centre for Disease Control published a report finding that in a call centre where 216 people worked in an open plan environment, 94 people tested positive for COVID-19 in the space of 16 days.
An Increase in Flexible Working Arrangements
During the pandemic, workplaces have been required to reduce the percentage of staff in the office on any given day, resulting in a mass take up of flexible working arrangements. While some industries have been unable to work remotely, it is estimated that almost half of the Australian working population has spent time working from home over the past year.
As more people return to work, employers have taken precautions such as installing dividers or barriers between desks. However, research indicates that COVID-19 can remain on surfaces for up to three days and dividers have limited effectiveness in the event of a sneeze, which can travel as far as 8 meters. This calls into question whether open plan offices can ever be COVID Safe.
Generally, workers have no legal right to remote work where an office is ‘COVID Safe’, particularly where an employment contract, award or enterprise agreement stipulates office work. Under the Fair Work Act, workers have the right to request flexible working arrangements where a workplace is unsafe or if they have an underlying medical condition. However, employers can refuse these requests.
Where an employee reasonably believes their workplace is unsafe and their employer has failed to take appropriate measures to combat the risk of infection, they may be able to lawfully demand they continue working from home.
The Shortcomings of Open Plan Workspaces
Open plan offices are often celebrated for facilitating greater collaboration between colleagues and increasing efficiencies in the workplace. However, research before the COVID-19 pandemic indicated that open plan arrangements can be more disruptive due to frequent interruptions, an increase in stress and dissatisfaction and higher use of sick leave, resulting in diminished productivity. A research paper from the United States surveyed 42,700 US office workers and determined that the loss of productivity was two times worse in open plan compared to private offices.
When employers construct physical work environments, they have a duty of care to provide a safe and effective working environment. Open plan arrangements are disruptive, dangerous and limit the extent to which employees can control their working environment. In contrast, private offices and remote work allows employees to configure a personalized environment that suits the way they work.
Rather than forcing employees back into the office, employers need to reimagine their office spaces and embrace flexible working models to align with modern expectations of the work-life balance.
Workers who are concerned about whether a direction to return to the office is reasonable should contact their trade union or a lawyer.
Segelov Taylor Lawyers Can Help
Lawyers, such as Segelov Taylor, can provide guidance on return-to-work directions, and provide advice and representation regarding flexible working arrangements.
Segelov Taylor principal David Taylor is an accredited specialist in employment law. If you have concerns about safety in the workplace, please get in touch by email firstname.lastname@example.org or by phone (02) 8880 0500.
This information is intended as general information only. It does not purport to be comprehensive advice or legal advice. Readers must seek professional advice before acting in relation to these matters