With the impacts of the spread of COVID-19 now affecting all our workplaces more and more, we are providing some further useful information to assist our clients navigate and understand their responsibilities around the situation. From a team member perspective, the two significant areas of impact that need to be considered are WHS requirements, and also dealing with employees who must take leave and what to pay by way of leave entitlements.
Work Health and Safety (WHS) laws require businesses to ensure, so far as is reasonably practicable, the health and safety of their workers and others at the workplace. This includes providing and maintaining a work environment that is without risk to health and safety and adequate facilities for workers in carrying out their work, so far as is reasonably practicable.
To comply with WHS laws, you must identify hazards at the workplace and the associated risks, and do what is reasonably practicable to eliminate thoserisks, or where this is not reasonably practicable, to minimise those risks.
Each workplace is different and will present its own risks for safety and health in terms of the possible transmission of Coronavirus. For example, the steps that might be needed to ensure health and safety so far as is reasonably practicable in an administration office will differ from those that may be necessary in a child-care business, an aged care business or a hospitality business, however every business needs to take time to consider where the risks of transmission of the virus affect their business and based on that assessment, implement measures to minimise the risks.
While every employer’s response must be tailored to its circumstances, below are some measures that every employer should be taking:
workers should know when to stay away from the workplace,
what action to take if they become unwell, and
what symptoms to be concerned about.
frequent hand washing,
limiting contact with others, including through shaking hands, and
covering their mouths while coughing or sneezing.
for example, rather than requiring employees to undertake air travel to attend face to face meetings, facilitate attendance by tele or videoconference.
The question of who pays for an employee’s time spent in self-isolation due to possible exposure to COVID-19 is not easy to answer, but confusion is rife so here follows some general guidance. Disclaimer – the above information provided is general in nature and does not constitute specific or legal advice. Information on COVID-19 is changing frequently and so updated health website should be relied upon.
When it comes to entitlements for leave relating to COVID-19 we have to apply a logic and employer decision on some of these things as they are unclear in the legislation to date and being updated regularly.
In relation to the specific circumstance of what is sick leave and what is not – we advise that you should use the same logic that you would for any prior sick leave and make decisions on a case by case basis. For example – obviously if they are unwell they are covered however whether they have been mandated or not i.e. if they may have been around someone at risk of the virus – an employer would not likely want that person at work. If this however is being taken advantage of and there is not any perceived risk – the employer may elect not to pay sick leave.
There are enforced quarantine requirements set by the Federal Government. If in the rare chance an employee is a confirmed case for contracting the COVID-19 outbreak, they are deemed sick – just like any other illness and can use accrued personal leave entitlements. These employees will require a clearance to return to work.
To note: Most businesses have a requirement for a sick leave certificate. Accessing doctors at the moment is difficult and a decision that employers need to think about.
Unfortunately, as is the case prior to COVID-19 – there is no paid sick leave entitlement for casual employees. Casual employees will need to follow the enforced quarantine requirements set by the Federal Government and provide a clearance to return to work.
In this instance an employee may not be entitled to personal leave and this will be up to employers to decide on a case by case basis.
In this scenario, the first step would be to determine if the employee can work from home. An employer should consider what measures it can take to assist an employee to be able to work from home.
If the employee cannot work from home, then the employer and the employee will need to come to an arrangement about the leave which might include:
In this circumstance, when the employer has not required the employee not to attend work, there isn’t a statutory obligation on the employer to pay the employee during the self-isolation period. The lawful requirement for the person to self-isolate renders them incapable of being able to do their job. Of course, a cooperative approach in circumstances like this is recommended.
This will be dependent on whether the team member is fit and able to perform their duties. Similar to any other illness, if employers have concerns – in the COVID-19 case – this could include sneezing, flu like symptoms they may send the team member to a doctor.
To note: Subject to risk, like schools some employers are checking temperatures and using this as a measure to determine whether to send people home.
Asking an employee to stay-at-home is effectively standing the employee down.
Where an employer directs a full-time or part-time employee to stay home in line with advice, for example in line with the Australian Government’s health and quarantine advice, and the employee is not sick with coronavirus, the employee should ordinarily be paid while the direction applies. Employers should consider whether their obligations are impacted by any applicable enterprise agreement, award, employees’ employment contracts or workplace policies.
Under the Fair Work Act, an employee can only be stood down without pay if they cannot be usefully employed because of equipment breakdown, industrial action or a stoppage of work for which the employer cannot be held responsible. The most common scenarios are severe and inclement weather or natural disasters. Standing down employees without pay is not generally available due to a deterioration of business conditions and there are currently no further specific rules or legislation for these kinds of situations.
Employers can require an employee to take a period of paid annual leave for the stand down/self-isolation period if that request is reasonable (e.g. the employee has excessive annual leave accrued) and if any requirements in an applicable modern award or enterprise agreement are satisfied. Likewise, an employer can direct employees to take a period of accrued long service leave subject to the legal requirements in each State.
Similarly, employees may request the period be paid as annual leave or long service leave.
Of course, an employer should check any enterprise agreement or employment contracts to determine if there are other grounds for which it is possible to stand an employee down without pay. For example, an enterprise agreement may provide that the employer can stand employees down without pay if the employee is unable to undertake their work without being a work health and safety risk.
If it is not possible for the employee to work from home in this circumstance, then the employee will need to apply for annual leave or use any accrued long service leave or take the period of leave without pay.
Employees should contact their employer immediately if they are unable to attend work because they cannot return from overseas. If an employee cannot work due to travel restrictions (for example, they are stuck overseas), they are not entitled to be paid (unless they use paid leave entitlements). Again, employers should consider whether their obligations are impacted under any applicable enterprise agreement, award, employees’ employment contracts or workplace policies.
Each country at the moment has their own slightly different rules regarding isolation. Wherever possible – overseas trips should be cancelled at this time. If team members are required to travel overseas – it is unclear however I believe it would be reasonable to ensure they are covered for pay for any mandated isolation periods.
No employee can be lawfully instructed to work in an unsafe environment. Again, doctors are the experts in health. Personal decisions to stay home contrary to medical advice would normally result in unpaid absence from work.
To note: Consultation with team members will still be required for redundancies.
Where possible, try and send people on leave using their accrued leave entitlements, negotiating reduced hours of work or unpaid leave and if required calls for voluntary redundancies. Subject to the type of work you do, redundancies may also be required.
This is a new and rapidly changing situation with information frequently updating and changing with no specific guidelines or legislation currently in place. Nor is there a lot of relevant case law to guide us so entitlements around COVID-19 implications are requiring interpretation based on current award and NES information that don’t always fit the individual situations and/or queries we are receiving.
In addition to the above, the below are great tools to utilise if you don’t already have in place:-
Disclaimer – the above information provided is general in nature and does not constitute specific or legal advice. Information on COVID-19 is changing frequently and so updated health websites should be relied upon. If you have more questions about COVID-19 and work specifically, email@example.com or Kylie or myself.
PS – this week we will also send out a 12 summary recommendations useful tool, some useful signs for around the office to assist and a draft business continuity plan for our clients