Avoiding Essential Safety Measures Liability During COVID-19
Editor’s note: While this article was originally written to address liability during COVID-19, the advice applies to any time period. Particularly as many buildings remain vacant or only partially occupied.
The global acceleration of COVID-19 has caused an equally sharp rise in the necessity for work from home arrangements. The flow-on effect of this mass transition is creating a larger number of temporarily vacant workplaces, offices and worksites.
As a result, some make the mistake of overlooking the need to maintain compliance across essential safety measures and risks. Building owners, operators and managers must comply with industry guidelines, regulations and Australian Standards. Additionally, you can be held liable for avoiding mandatory regulations, which may result in ‘prosecution or substantial fines.’
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What are my compliance requirements during COVID-19?
The Building Code of Australia, Building Regulations and Australian Standards specify which requirements you must meet. Irrespective of the current vacancies and disuse of buildings, workplaces or worksites. Relevant authorities enforce these obligations. These authorities include the Victorian Building Authority (VBA), the NSW Environment Protection Authority (EPA) and Queensland Fire and Emergency Services (QFES).
Failure to maintain compliance during any period, including during periods of inactivity, may attract severe penalties beyond the immediate impact on occupants.
We’ve recently covered the responsibilities of building owners and property managers to uphold the compliance and maintenance of building essential safety measures.
To recap: Inspection, testing and maintenance of safety elements can occur at any interval, depending on applicable legislation in your state. As an example, Australian Standard AS 1851-2012 specifies intervals from monthly to 30-yearly. Specific intervals are prescribed depending on the element undergoing inspection or testing.
Maintaining safety measures, explained
Safety measures includes a variety of safety measures and systems. These include air handling systems, emergency warning systems, exit signs, fire extinguishers, fire isolated stairs, smoke alarms, sprinkler systems and egress paths.
Your concern primarily lies in safety measures that require compliance testing monthly to yearly. If you fail to maintain compliance for any duration, an authority may request to review your applicable compliance documentation and reports. In Victoria, this is the annual essential safety measures report (AESMR). If requested, your AESMR must be ‘available on request after 24 hours’ notice has been given.’
In other states, compliance documentation may be an annual fire safety statement, annual certificate of compliance or annual occupier’s statement.
Maintaining emergency planning, explained
In tandem with safety measures, you must uphold the currency of emergency management plans during inactivity or vacancy across buildings and worksites.
A current emergency management plan ensures that you and your staff are adequately prepared and up-to-speed with the latest emergency response protocols. Additionally, an emergency management plan can effectively preserve occupant safety when regular business activity resumes.
Given the heightened importance of occupant health and safety, you should seek the provision of COVID-19 and pandemic-specific emergency management procedures. A qualified emergency planning consultant can support you with this advice.
Australian Standard 3745-2010: Planning for Emergencies in Facilities outlines requirements for the development, management and execution of emergency plans. Additionally, it provides guidelines for responsible personnel such as the Emergency Planning Committee (EPC) and Emergency Control Organisation (ECO).
Facility managers and heads of risk and compliance must remember that emergency planning requires attention to education and training. Comprehensive training ensures that the emergency plan is properly enacted and that occupants are safe following an emergency.
Where it is not possible to deliver training face-to-face, Hendry can provide an alternative range of training solutions, including webinar training and emergency response from home. As a result, we enable our clients to respond effectively to COVID-19 and its operational implications.
To mitigate risks presented by larger groups, Hendry can replace normal sessions with multiple smaller sessions. Alternatively, we can arrange tenant visitations, where we conduct shorter sessions per tenancy or floor of a facility.
What if my building or business shuts down?
The clarification of Regulation 226 in the Building Regulations 2018 obligates a non-occupying owner of a building or place to maintain safety measures. This obligation continues even if the building is vacant.
Concerningly, many are tempted to reduce costs in the short term by postponing safety measures inspections and relevant obligations during a vacancy period.
Postponing inspections and obligations poses a greater risk to occupants when businesses resume as usual. If critical infrastructure isn’t maintained per Australian Standards and applicable industry guidelines, we’ll likely see an increase in avoidable risks to safety.
However, there are several advantages to conducting safety measures inspections and testing. Primarily, managing obligations now will avoid the usual disruption to business where occupants would otherwise be present. Fulfilling obligations also avoids causing any interruption or shutdown of critical components during testing, which would otherwise cause temporary disruption.
Who can I discuss my requirements with? Can I delay any of my obligations?
Your obligations to relevant regulations cannot be excused or delayed.
The VBA states that ‘Non-compliance may result in an infringement notice being issued by Council or the Fire Authority, along with a fine. It may also result in prosecution and more substantial fines. But, more importantly, non-compliance could place building occupants at risk, as well as passers-by and the occupants of adjoining buildings.’
You must consult with a registered practitioner for both essential safety measures compliance and inspection schedules.
To continually meet compliance obligations, we recommend that clients contact us to bring forward their testing schedule and maximise compliance outcomes. Our experts have helped clients to manage their compliance obligations across safety measures and work health and safety.
We encourage our networks to review their plans and seek consultation to reduce risk and liability. Overall, it is a direct responsibility to maintain building and life safety to avoid potential loss and disruption.
When it comes to compliance, it should be business as usual.