Managing people

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• Volunteers are back in the workplace. What are your obligations?
• How do you know if your organisation’s measures to control risks are reasonable?
• If your organisation has undertaken a risk assessment, consulted with volunteers and thinks it needs to pause or change the volunteering model – is this OK?
• Can your organisation require volunteers to take safety precautions such as wearing a mask or being vaccinated?
• Can your organisation require volunteers to show proof of vaccination or medical evidence for an exemption?
• What are your organisation’s obligations when collecting this type of health information?
• Can your organisation require vaccination as part of the recruitment process?
• Can your organisation have a different approach depending on the role of the volunteer?
• Should your organisation let its volunteers work from home?
• When is your organisation at risk of discriminating against volunteers?
• What happens if a volunteer contracts COVID-19 and is not covered by volunteer personal accident insurance? Could your organisation be held liable (legally responsible)?
• Can you ask your volunteers to sign a waiver to protect the organisation from liability in the event they contract COVID-19?
• What should you do if a volunteer refuses to follow a COVID safe plan or follow preventative measures?

Volunteers are back in the workplace. What are your obligations? 

Organisations have a responsibility to ensure the health and safety of their volunteers to the extent reasonably possible and they owe a duty of care to their volunteers. COVID-19 can be regarded as a foreseeable risk from which community groups are required to take reasonable steps to protect volunteers.

Organisations also have a responsibility to take reasonable precautions to ensure the safety of people that volunteers interact with, such as clients, employees, other volunteers and members of the public. Accordingly, where a volunteer exposes another person, such as a client or service-user, to infection or harm, your organisation may be responsible.

To manage the safety of your volunteers (and the safety of people that volunteers interact with) during COVID-19, it’s important to undertake a risk assessment, consult your volunteers and put measures in place to control or reduce risks.

Risk assessment

Identify the risks of COVID-19 in the workplace and assess the likelihood and impact of the risks. This is an ongoing process, the situation is constantly changing and you will need to assess your risk continually. For example, the risk unvaccinated people pose to volunteers will vary and may depend on the volunteer’s role and the prevalence of COVID-19 in the community at the time.

Consultation with volunteers

It’s important to consult with your volunteers about any proposed course of action. There is no one size fits all approach to consultation, but be careful to consult in a way that gives volunteers a reasonable opportunity to consider the risks and express their views in a forum that respects their confidentiality.

This may not be a strict legal requirement for all organisations (the laws differ in each state and territory), but regardless of whether (and which) work health and safety laws apply to your organisation, consultation with your volunteers about attendance in the workplace is best practice.

Measures to control the risks

Reasonable steps to prevent reasonably foreseeable harm (control measures) should align with up-to-date government and medical advice. When you implement ‘control measures’ consider the circumstances of the individual volunteer and the nature of the role that they perform for your organisation.

Examples of control measures could include:

• physical distancing and wearing masks in the workplace
• implementing a vaccine mandate in the workplace (see our webpage on managing vaccines in the workplace)
• asking volunteers to conduct rapid antigen testing for COVID-19 before attending the workplace
• undertaking frequent cleaning
• wearing personal protective equipment
• asking volunteers to volunteer from home
• asking volunteers to perform a different role, and
• reducing the level of interaction volunteers have with clients or members of the public, or other staff that have high levels of interaction with clients or members of the public

Any decision you make about a volunteer performing a different role with the organisation or working from home must be done in accordance with your existing risk management and insurance policies.

How do you know if your organisation’s measures to control risks are reasonable?

What is ‘reasonably practicable’ will depend on the circumstances of your organisation and the risk in question.

If your organisation is concerned that it may not have adequately assessed and addressed the risks, you could have the organisation’s risk management framework reviewed by a WorkSafe advisory service or workplace health and safety consultant firm.

If your organisation has undertaken a risk assessment, consulted with volunteers and thinks it needs to pause or change the volunteering model – is this OK?

Yes – the nature of the legal relationship is that it is voluntary and can be ended by either party at any time.

If, after the above steps, your organisation forms the view that:

• the ‘reasonable steps’ your organisation can take are not enough to protect the health and safety of volunteers
• volunteers are not comfortable with returning to the workplace, or
• the cost or impact of the ‘reasonable steps’ you would need to take is significantly disproportionate to the resources of your organisation,

you can put volunteer positions ‘on hold’ for the foreseeable future (or ask volunteers to perform different duties or volunteer remotely).

Can your organisation require volunteers to take safety precautions such as wearing a mask or being vaccinated?

Yes – safety precautions such as wearing a mask or being vaccinated are examples of measures your organisation may adopt to prevent reasonably foreseeable harm due to COVID-19 in the workplace.

These measures should align with up-to-date government and medical advice. Also see our webpage on managing vaccines in the workplace.

Can your organisation require volunteers to show proof of vaccination or medical evidence for an exemption?

Where there is a public health order requiring a volunteer to be vaccinated, your organisation is entitled (and may be required) to obtain evidence from the volunteer of their vaccination status.

Organisations may also seek this information where an organisation has made COVID-19 vaccination mandatory as a reasonable safety measure.

Evidence of COVID-19 vaccination should include either the COVID-19 digital certificate or immunisation history. Both are accessible through Medicare accounts.

A volunteer’s vaccination status is sensitive health information and must be treated in accordance with applicable privacy laws.

Also see our webpage on managing vaccines in the workplace.

What are your organisation’s obligations when collecting this type of health information?

To comply with privacy laws, your organisation will need to take steps to ensure any sensitive or health information collected about volunteers is handled properly.

When asking your volunteers for this type of information, make sure:

• only the minimum amount of personal information reasonably necessary to prevent or manage COVID-19 is collected, used or disclosed (for example, ask the volunteer to identify if one of risk factors applies to them and don’t ask them to specify which one)
• you assign a direct point of contact for the volunteer to provide this information to (for example, is it by email or a 1:1 conversation with their direct supervisor, the volunteer co-ordinator or HR?)
• you seek consent to collect this information and explain why you are collecting this type of information, what your organisation will do with this type of information and who it will be disclosed to (for example, HR or the volunteer manager)
• you use this personal information only for the purpose for which it was collected (if in doubt seek their consent)
• you don’t disclose this information to anyone outside of those you have told your volunteer it will be disclosed to (if in doubt seek their consent), and
• you store the information securely

Can your organisation require vaccination as part of the recruitment process?

An organisation may make the volunteer relationship conditional on any number of factors, including that a prospective volunteer be fully vaccinated against COVID-19, provided the condition is not unlawfully discriminatory.

Where a public health order requires certain volunteers to be vaccinated against COVID-19, organisations should make COVID-19 vaccination a condition of the volunteer relationship when advertising new roles. This step will help ensure compliance with the public health order and allow prospective volunteers to consider whether they are suited for the role in circumstances where they will be required to receive a COVID-19 vaccine.

In the absence of a public health order requiring volunteers to be vaccinated, organisations may still be required to implement a mandatory vaccination policy to comply with their work health and safety obligations. In these circumstances, organisations should also consider making COVID-19 vaccination a condition of the volunteer relationship when advertising new roles.

When considering whether to include a requirement that a prospective volunteer be fully vaccinated against COVID-19, protected attributes to consider are disability (health condition), pregnancy status and, potentially, religion or social origin. So, if an organisation makes volunteering conditional on a potential volunteer’s vaccination status, it must have the capacity to provide exemptions in appropriate circumstances, (such as, for example, where a prospective volunteer is immunocompromised or has another medical contra-indication).

Organisations must also consider their privacy obligations before requiring prospective volunteers to disclose their vaccination status.

Can your organisation have a different approach depending on the role of the volunteer?

Yes, in considering what control measures are reasonable to protect the health and safety of volunteers (and others in the workplace), the volunteer’s role will be relevant.

For example, an organisation may place different safety requirements on a volunteer who cooks in a community kitchen and a volunteer who helps with accounting administration in a separate room with little or no contact with people.

Should your organisation let its volunteers work from home?

It depends. Allowing volunteers to work from home may not be sensible in all situations. If your volunteers require high levels of supervision (for example, engaging with difficult or challenging clients), your organisation may need to consider whether it’s appropriate to ask your volunteers to work remotely. Remember, you have a duty of care to ensure the safety (physical and psychological) of your volunteers and clients, and this can be difficult to monitor if your volunteers are working remotely.

If it’s safe to have your volunteers volunteer remotely, make sure they have the necessary equipment, training, and a safe environment in which to work.

Consider what measures your organisation can put in place to support volunteers. This could include, for example, conducting meetings through video-conferencing and sending work to be reviewed by email.

If any of your volunteers have a confirmed or suspected case of COVID-19, your organisation should encourage them to self-isolate for the recommended number of days for the health and safety of your other volunteers, employees and clients.

When is your organisation at risk of discriminating against volunteers?

There may be an overlap between the personal circumstances of volunteers and ‘protected attributes’ under anti-discrimination legislation (for example, age, race and disability).

If, based on current government advice, a volunteer has an increased risk of serious illness from COVID-19 (a ‘vulnerable person’), asking the volunteer not to attend the physical workplace under safety laws is likely to be a ‘reasonable step’ to prevent harm. In these circumstances, it will be difficult to argue that you are breaching anti-discrimination laws.

It is, however, important that your organisation:

• considers the number of COVID-19 cases in your region (if case numbers in your region are low or decreasing, it might not be as reasonably necessary to stay away from the workplace as it would be if there were increasing cases)
• asks for the volunteer to self-identify whether any of the factors that increase the risk of serious illness due to COVID-19 apply to them (and not make assumptions)
• talks to the vulnerable volunteer about the reasons behind your decision – that is, you are following current government advice and it’s important that you protect the health and safety of your volunteers
• makes these decisions in line with current government medical advice, and
• continually updates your approach to meet current government advice

If your organisation is not sure, seek legal advice. Your organisation may be eligible for free legal advice through Justice Connect – contact us to find out.

In the absence of a vaccine mandate, whether your organisation can ask volunteers who haven’t been vaccinated against COVID-19 not to attend the workplace can be a tricky issue. Seek legal advice before taking this step.

For volunteers to which the factors that increase the risk of serious illness due to COVID-19 don’t apply, whether your decision breaches anti-discrimination laws will depend on the circumstances.

Discrimination laws exist at a federal level, and in each state and territory. Even if your volunteers are covered by anti-discrimination laws, some states and territories have an exception that allows discrimination to occur if it is necessary for the protection of public health or the health and safety of a person (you would need to clearly demonstrate with strong evidence that it was reasonably necessary).

Regardless of whether the anti-discrimination laws apply to your organisation and its volunteers (or only in limited circumstances, or only to your employees) it’s best practice to comply with the laws (as much as reasonably practicable).

In the current context, this means organisations should:

• carefully consider the impact of the decisions you make to protect volunteers in the workplace
• avoid blanket policies that treat one category of volunteer differently from another category
• not make assumptions about a group of people based an attribute they share such as being over a particular age, having a disability or being of a particular race or ethnicity
• balance ‘safety law’ obligations with anti-discrimination laws – are your decisions ‘reasonably necessary’ to protect the health and safety of the volunteer or can you adjust the role or put control measures in place to minimise the risk?
• document the reasons for any decision that treats or impacts one volunteer differently from another

Not only is this favourable to your volunteers (and workers, clients and members of the public in contact with your organisation), it will help prevent any reputational or other damage to your organisation that may arise from a complaint of discrimination.

What happens if a volunteer contracts COVID-19 and is not covered by volunteer personal accident insurance? Could your organisation be held liable (legally responsible)?

Volunteer personal accident insurance will cover volunteers for expenses incurred in the event of accidental injury, disability or death which occurs while the volunteer is doing work for the community organisation.

It’s important for each organisation to clarify coverage with their insurer, but – in general, volunteer personal accident insurance does not cover sickness or illness and there is very often a ‘carve-out’ or ‘exclusion’ for pandemics.

Given volunteers are generally not eligible for workers compensation insurance and public liability insurance covers injuries caused by volunteers (not injuries caused to volunteers), volunteers may not be able to seek compensation for things such as medical expenses or loss of income if they contract COVID-19 while performing their volunteer role with your organisation.

It’s difficult to say whether organisations will be held liable (legally responsible) for a volunteer contracting COVID-19. At a minimum, the volunteer would need to prove they contracted the virus while volunteering and that your organisation failed to take reasonable steps to prevent the harm from occurring (which led to the volunteer contracting the virus).

If your organisation is carefully following government and up-to-date medical advice, undertaking regular risk assessments, taking reasonable steps to prevent harm, and carefully documenting your decision making, the risk of being held liable is low.

If a volunteer doesn’t practise ‘COVID-safe’ behaviour it’s highly unlikely your organisation will be held legally responsible.

Can you ask your volunteers to sign a waiver to protect the organisation from liability in the event they contract COVID-19?

We don’t recommend that organisations ask volunteers to sign a waiver that is designed to protect it from the volunteer bringing a claim against the organisation. It’s unlikely the terms of the waiver would be legally effective and the waiver would not replace your legal duty to protect the health and safety of your volunteers.

As a matter of best practice, it’s important that organisations are up-front and clear about when volunteers are and are not covered by insurance. This will help volunteers to make an informed decision about resuming their volunteer duties.

Organisations could decide to ask their volunteers to sign a declaration that they:

• will practise ‘COVID-safe’ behaviour and update you with important information (for example, if they have been exposed to someone who has been diagnosed with COVID-19, or if they feel unwell or have symptoms of the virus)
• acknowledge that the organisation can try and prevent risk, but can’t guarantee all risk is eliminated, and
• if it is the case, acknowledge that the volunteer is not covered by volunteer personal accident insurance in the event they contract COVID-19

What should you do if a volunteer refuses to follow a COVID safe plan or follow preventative measures?

Your organisation has obligations under safety laws to take reasonable steps (also framed as ‘do what is reasonably practicable’) to avoid risk or harm to volunteers – including contracting COVID-19. Equally, volunteers have a legal obligation to take steps to protect their own health and safety and the safety of others.

If a volunteer refuses to comply with health and safety measures, start by having a conversation with them, explaining why it’s important and asking for any feedback on why it isn’t working for them. If this doesn’t work, it’s reasonable to put a pause on the volunteer relationship or to end the volunteer relationship – in fact it’s part of meeting your legal duties!

The content on this webpage was last updated in October 2022 and is not legal advice. See full disclaimer and copyright notice.

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