There is a lot of discussion regarding employment and the coronavirus pandemic, so we thought it would be useful to summarise the essential information for you.
Health and Safety at Work
- Employers are required to supply a safe system of work for employees in the workplace. The coronavirus Covid 19 (CV) is a potential health risk.
- Employees are required to take reasonable steps regarding their health and safety, including others in their workplace, and follow the reasonable instructions of the employer in this regard.
- Employers and employees should follow the Victorian Department of Health guidelines in relation to coronavirus found here. Alternatively, visit the Department of Health in the relevant Australian state where you are located.
- Employers should consider what protocols they should have in place at work. These can include warnings in place for visitors, staff, and customers that they shouldn’t enter the premises if they have CV symptoms; protocol regarding meetings (face-to-face or via phone or video); and reviewing the supply of hand sanitizer, disinfectant wipes available throughout the workplace.
If Your Employee Contracts Coronavirus
- If an employee (or dependent) is ill due to coronavirus, they will be entitled to paid sick leave if they have unused sick leave/personal entitlements. If they don’t have any unused entitlements, the parties could agree that the employee can take accrued annual leave. Otherwise, unless the employer can afford to pay the employee for all or part of the leave, and agrees to do so (they might do this as annual leave in advance or simply agree to pay additional sick leave), the leave will be unpaid.
- If an employee is suspected of having the virus, they should not to come to work and go into self-isolation following Australian Government Health Department Guidelines home isolation guidelines.
- If it’s possible to do so, the employee may be able to work from home. If so, note that the employer still has some OH&S obligations in terms of taking reasonable steps to ensure that the work will be undertaken without undue exposure to OH&S risks.
- Implement a Working from Home checklist to assess the risk. If it isn’t possible or practicable for the employee to work from home, it may be that fair and reasonable employer acting in good faith should pay the employee – the employer has required that the employee not come to work.
Sick and Annual Leave
- If any employee is required to self-isolate because of Australian Government Health Department Guidelines or governmental directions but isn’t sick, they wouldn’t have any entitlement to be paid sick leave. However, they and the employer could discuss options including the employee working from home or treating this as sick leave or agreeing that the employee could take annual leave.
- If an employee is concerned about the coronavirus and doesn’t wants to go to work, or has to stay home because a dependent has been required to go into self-isolation, this isn’t a sick leave situation. If it’s possible to do so, the employee may be able to work from home. If this isn’t possible, they aren’t sick and ultimately may not be entitled to any form of payment. An employee has the right to be assured their workplace is safe. But if the employee isn’t acting within Australian Health Department Guidelines (i.e. there’s no reason for them to be concerned) there may be wider employment law issues (e.g. in law, the employee may be refusing to work without lawful justification.)
- If an employer needs to close for a period, they may be required to pay their employees. However, it’s possible that a stand-down provision in an employment agreement or provisions the Fair Work Act would excuse the employer from the obligation to pay.
Employees Disclosing Prospective Travel
- There’s a lot written about employees being required to disclose prospective travel – and what should happen when employees return from travel. Those issues are becoming less relevant with an increasing number of countries closing their borders.
Downsizing Operations Implications
- The effect of the CV on some businesses may be significant, if not severe (particularly in travel, tourism and hospitality). Especially where employees can’t work effectively from home, some businesses may need to reduce staff to survive. It may be that in some of these situations, agreements of some kind could be reached with staff to enable them to remain employed (e.g. reduction in remuneration for a period of time, reduction in hours, etc.)
- Where an employer moves to permanently downsize a position due to an economic downturn or a business reorganisation, then the law relating to redundancy will apply. Employers will need to carefully follow the law relating to notice and redundancy payments.
The Fair Work Act does not really contemplate or accommodate the unprecedented set of circumstances that employers and employees currently find themselves in regarding coronavirus and the workplace.
We encourage commonsense and a commitment to cooperate and work together to meet these challenges.
Please also share this update with anyone in your network who might be interested.