Workplace Safety and Health (Covid-19 Safe Workplace) Regulations 2021 in force from 1 January 2022: Allen & Gledhill

27 January 2022

The Workplace Safety and Health (Covid-19 Safe Workplace) Regulations 2021 (“Regulations”) were gazetted on 29 December 2021 and came into operation on 1 January 2022. The Regulations provide for work-from-home arrangements, workplace access and vaccination against Covid-19, workplace safe management measures, and offences. Illustrations are provided in the Regulations to explain the application of the provisions.

Work-from-home arrangements

An employer must not cause or allow any employee to attend at any of the employer’s work premises to perform work for the employer if it is reasonably practicable for the employee to perform that work at the employee’s place of residence. An employer must provide the tools, equipment, materials and other facilities necessary for an employee to perform work in the employee’s place of residence.

An employer may permit or require relevant employees to attend at any work premises of the employer to perform work provided the employer takes, so far as is reasonably practicable, the necessary steps to ensure that the number of relevant employees permitted or required to attend at the work premises at any one time is limited to not more than 50% of the employer’s relevant employees for those work premises.

A “relevant employee” means an employee other than an employee who is required to perform work the nature of which necessarily requires or involves the employee:

driving, piloting or travelling in any motor vehicle, vessel or other mode of conveyance; or
being physically present at his or her workplace:
to operate or use machinery, equipment, plant, materials or other matter, the provision of which for use at the employee’s place of residence is impracticable but is required in order to perform that work;
to retrieve, access or use documents, information, material or other matter, the provision of which for use at the employee’s place of residence is impracticable but is required in order to perform that work; or
to perform the work, such as patrolling or guarding another person’s property, crowd control or administering a beauty therapy procedure.

Where an employer or a principal permits or requires work to be performed by an employee of the employer or a worker of the principal at any work premises of the employer or principal (as the case may be), the employer and the principal must take, so far as is reasonably practicable, the necessary measures to comply with the requirements regarding workplace access and vaccination and workplace safe management measures, as prescribed in the Regulations.

A “worker”, in relation to a principal, means an individual who is (a) a contractor engaged by the principal otherwise than under a contract of service, (b) a direct or an indirect subcontractor engaged by a contractor mentioned in (a), or (c) an employee employed by such a contractor or subcontractor in (a) or (b), when working under the direction of the principal.

Workplace access and vaccination against Covid-19

Duty of occupier, employer and principal in relation to vaccinations

An occupier of any work premises must take, so far as is reasonably practicable, the necessary measures to ensure that every individual who enters or remains in the work premises in connection with any trade, business, profession or undertaking the occupier is carrying on at those work premises is a defined person when at work in those work premises.

Among others, a “defined person” is an individual who:

is vaccinated against Covid‑19 infection and has a cleared status (general);
is a recovered person and has a cleared status (general);
is an excepted person in accordance with the Infectious Diseases (Covid‑19 Access Restrictions and Clearance) Regulations 2021; or
has a cleared status (overseas temporary), in accordance with the Infectious Diseases (Covid-19 Access Restrictions and Clearance) Regulations 2021.

Similarly, an employer or principal is required to take, so far as is reasonably practicable, the necessary measures to ensure that every employee or worker respectively permitted or required to attend at any workplace to perform work is a defined person. An employer or principal must not hinder or prevent any employee or worker from going for vaccination against Covid-19 during working hours, if vaccinations are available during those hours.

If an occupier, employer or principal does not have information about the vaccination status (“vaccination information”) of an individual, employee or worker respectively, the individual, employee or worker must be treated as unvaccinated.

Duty of unvaccinated individual at work

An individual (whether or not he or she is an employer or employee, a worker, principal or self‑employed) must not perform work or carry out any undertaking at a workplace that is not the individual’s place of residence unless he or she is a defined person.

Duty of employee to notify employer of becoming diagnosed person

An employee or worker who becomes a diagnosed person must take all reasonably practical steps to notify, without delay after becoming aware that he or she is a diagnosed person, the employer or the principal (as the case may be) of any work premises which the employee or worker has attended in the relevant period. A diagnosed person is defined in the Regulations and includes an individual who is subject to a movement control measure.

Collection of vaccination information

If an employee of an employer or a worker of a principal is required to perform work outside their place of residence, the employer or principal must collect, record and hold vaccination information about the employee or the worker, as the case may be.

If the employer or principal collects information that an employee or a worker:

is partially vaccinated, the employer or principal must also collect, record and hold information about whether that employee or worker has a booking to receive a dose of an approved vaccine that will cause the employee or worker to become vaccinated; or
is unvaccinated, the employer or principal must also collect, record and hold information about whether that employee or worker has a booking to receive a dose of an approved vaccine that will cause the employee or worker to become partially vaccinated.

An employer or a principal must comply with the obligations to collect, record and hold vaccination information as soon as reasonably practicable, but these obligations do not apply if the employer or principal already holds vaccination information about an employee or a worker who is, or may be, required to work outside their place of residence on or after 1 January 2022.

Duties of employers’ and principals’ regarding workplace safe management measures

The Regulations set out the duties of employers and principals in relation to workplace safe management measures. These encompass the following: