Avoiding liability during COVID-19: How to maintain Safety Measures and Emergency Planning Compliance during building vacancy or inactivity
Author | Kieran Balmaceda
The rapid acceleration of COVID-19 as a point of global concern has caused an equally sharp rise in popularity, and necessity, for Work from Home arrangements in order for employers to maintain employee health and safety.
The flow on effect of this mass transition is creating a larger number of temporarily vacant workplaces, offices and worksites irrespective of industry.
What is being overlooked however, is the need to maintain compliance across critical safety measures, risk and the currency of emergency management plans and resources, each in keeping with industry guidelines, regulations and Australian Standards.
Building owners, operators and/or managers can be held liable for avoidance of mandatory regulations, which may result in “prosecution or substantial fines”
What are my compliance requirements during COVID-19?
Irrespective of the current vacancies and disuse of buildings, workplaces or worksites, the Building Code of Australia, Building Regulations and Australian Standards specify in precise terms requirements which must be met. These obligations are enforced by relevant authorities which may include the Victorian Building Authority (VBA), the NSW Environment Protection Authority (EPA) or Queensland Fire and Emergency Services (QFES).
Failure to maintain compliance during any period, including during periods of inactivity as we are experiencing now, may attract sever 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 safety measures.
To recap: inspection, testing and maintenance of safety elements can occur at any of the following intervals, depending on applicable legislation in your state. Australian Standard AS 1851-2012 as an example specifies the following intervals, which are prescribed depending on the element undergoing inspection or testing:
Essential Safety Measures are defined by the VBA as:
“Defined in Part 15 of the Building Regulations 2018 (the Regulations) and includes items listed in Schedule 8 of the Regulations, such as:
- air handling systems (used for smoke hazard management)
- exit doors
- early warning systems
- emergency lifts
- emergency lighting
- emergency power supply
- emergency warning systems
- exit signs
- fire control centres
- fire curtains and doors
- fire extinguishers
- fire detection and alarm systems
- fire hydrants
- fire isolated stairs
- fire rated materials
- fire windows
- mechanical ventilation (incorporate a cooling tower or hot or warm water system)
- fire isolated passageways and ramps
- paths of travel to exits
- smoke alarms
- smoke control systems
- sprinkler systems”
In this case, your concern primarily lies in those safety measures which require compliance testing from between a monthly to yearly basis. Failure to maintain compliance for any duration will be observed where a request is made to review your annual safety measures report, which must be “available on request after 24 hours’ notice has been given.”
In tandem with Safety Measures, currency of emergency management plans must also be equally upheld during any time of inactivity or vacancy across buildings and worksites.
This is to ensure that, when regular business activity resumes, you and your staff are adequately prepared and up to speed with the latest emergency response protocols and can effectively preserve occupant safety.
Given the heightened importance of occupant health and safety at present, it is advised that you seek the provision of COVID-19 and pandemic specific emergency management procedures supported by the advice of a qualified emergency planning consultant.
Australian Standard 3745-2010: Planning for Emergencies in Facilities outlines requirements for the development, management and execution of emergency plans, alongside guidelines as to the duties of responsible personnel such as the Emergency Planning Committee (EPC) and Emergency Control Organisation (ECO).
Facility managers and heads of risk and compliance are reminded that emergency planning requires attention to education and training, which are critical elements in the ability to enact the emergency plan and ensure that, following an emergency, provisions for occupant safety are comprehensively met.
Where it is not possible to deliver training face-to-face, Hendry can provide a range of training solutions at this time. This includes webinar training, which also include additional information on Home Safety (emergency response from home) as we enable our clients to respond effectively to COVID-19 and the operational implications.
To mitigate risks presented by larger groups, Hendry can replace normal sessions with a multiple smaller sessions or tenant visitations, where shorter sessions can be conducted 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 “places an obligation on a non-occupying owner of a building or place – irrespective of the age of the building or place – to maintain the Safety Measures so they can fulfil their purpose. This obligation continues even if the building is vacant.”
It has been concerning to observe the temptation to reduce costs in the short term by postponing safety measures inspections and relevant emergency management and planning obligations during a period of vacancy.
This will inevitably pose a greater risk to occupants at such a time that business can resume as usual, as critical infrastructure has not been maintained in accordance with Australian Standards and applicable industry guidelines during this time and may present avoidable risks to safety.
There are however a number of advantages in conducting safety measures inspections and testing at this time. Primarily, managing these obligations now will avoid the usual disruption to business where staff members or occupants would otherwise be present. This also avoids causing any disruption or shutdown of critical components during testing, which would otherwise have caused temporary disruption.
As compliance obligations must continually be upheld, we recommend that clients contact us to bring forward their testing schedule and maximise compliance outcomes.
Who can I discuss my requirements with? Can I delay any of my obligations?
To answer the last question first; your obligations as set out in the relevant regulations cannot be excused at any time.
The VBA state 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. More importantly, non-compliance could place building occupants at risk, as well as passers-by and the occupants of adjoining buildings.”
It is essential at this time that you consult with a registered practitioner for both Safety Measures compliance and inspection schedules and to discuss your Emergency Planning requirements to ensure that both obligations can be comfortably met.
In the current climate, it is particularly important that emergency management and response training should account for the specificity of pandemic events such as COVID-19.
Hendry recommends that you contact the following members of our team, who have assisted clients in managing their compliance obligations across emergency planning, safety measures, Work Health and Safety.
We additionally 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 as a means to avoid potential loss and disruption.
When it comes to compliance, it should be business as usual.
National Operations Manager – Safety Measures
National Manager – Emergency Planning
How can I prevent an unnecessary risk of COVID-19 exposure on site?
We’ve provided a breakdown of our risk management protocols and recommendations on our website. Follow the link to read the full document.