Due to the recent coronavirus (COVID-19) pandemic, it has left many employers concerned about how to ensure the health and safety of their staff.
During this unprecedented time we have been asked many questions from employers. To assist during this difficult time, below are frequent questions that we have been asked and general answers / guidelines you can follow.
From the outset we must say the contents in this publication are for general reference purposes only and it does not constitute legal advice. Specific legal advice should always be sought specific to the industry you operate in before taking any action based on this publication. Apart from the Fair Work Act 2009 (Cth), employers should check their obligations under any applicable enterprise agreement, modern industry award, employment contract and/or workplace policies that may apply, which may be more generous than the statutory minimums which is outlined in this publication. If your organisation requires specific advice, please contact Aaran Johnson or Simon Kumar (contact details below) to discuss.
FAQ
(1) What if my employee cannot attend work because they have coronavirus?
Employees who are sick with the coronavirus should not attend the workplace. If they do attend the workplace knowing that he or she has coronavirus, that is a health and safety breach on their part.
Employers can direct employees who are sick with the coronavirus not to come to work. In doing so, you will be relying on the Australian Government’s health and quarantine guidelines.
In this instance, the employee should be placed on paid personal leave (normally known as sick leave) with a requirement to provide medical evidence such as a medical certificate for the period they are off work. If that leave balance is exhausted, your employee might wish to consider other alternatives, such as taking annual leave, long service leave or leave without pay.
Employers should request medical clearance prior to an employee returning to work. Best practice is to ensure the employee cannot return to work until he or she provides a medical clearance - it is not the employee’s choice to not provide a medical clearance.
(2) One or more of my employees has contracted coronavirus, do I have to shut my entire office / workshop down?
If one or more persons has coronavirus in your business, your office does not necessarily have to shut down. You could shut down the relevant department, and the rest of the departments keep working.
However, best practice in this scenario is yes shut down temporarily, placing all employees on sick leave, and tell them to get medically tested immediately and notify their employer of the test results as soon as practicable.
During the shutdown period, your office / workshop should be thoroughly cleaned, disinfected and sanitised.
(3) What if my employee does not have coronavirus but is at risk of infection from coronavirus?
If an employee is at high risk of infection from coronavirus (for example, because they have been in close contact with someone who has the virus), employers should request that they work from home or not work during the risk period.
Due to health and safety obligations placed on both employers and employees, an employee with high risk of infection from coronavirus has a duty to disclose this to their employer to ensure the employer can provide a safe and healthy workplace for all its personnel. Accordingly, employers should direct employees to disclose if they have a high risk of infection from coronavirus, and to disclose what specific situations they have been and may be exposed to that create risk.
In the instance the employee is not working, the employee should be placed on paid personal leave. If that leave balance is exhausted, your employee might wish to consider other alternatives, such as taking annual leave, long service leave or leave without pay.
Employers should request medical clearance prior to an employee returning to work.
(4) What if my employee is quarantined (in self-isolation due to the Government’s order when returning from overseas), or unable to return from overseas?
Employees should be told to contact their employer immediately if they are unable to attend work because they cannot return from overseas, or are required to enter quarantine to self-isolate because of the Government’s order.
If an employee cannot work because they are subject to a Government order requiring them to self-isolate, the employee is to be placed on unpaid leave (unless they request to use their paid leave entitlements – but that has to be done by agreement). In this scenario, the employee’s inability to work is because of a Government order, not because of their employer.
Consider whether the employee can access their paid personal leave entitlement or paid annual leave balance.
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.
(5) Can my employees be directed not to travel?
Employers can direct employees not to undertake work-related travel.
Employers are not able to direct an employee not to undertake private travel.
Employers are entitled to warn staff of the consequences of travel at this time.
(6) What if my employee wants to stay at home as a precaution (but they are not directed to stay at home by their employer or as a result of a Government order)?
Employees will need to request to work from home or to take some form of paid or unpaid leave. You should treat these requests as you would treat other normal applications for leave. Assess such flexible working arrangement requests in line with your business’ operational needs.
If the employee does not enter into an arrangement with their employer or use their paid leave balance, they are not entitled to payment in this scenario.
(7) What if I ask my staff to stay at home as a precaution (and not as a result of a Government order)?
Where an employer directs a full-time or part-time employee not to work due to workplace health and safety risks but the employee is ready, willing and able to work, the employee is entitled to be paid whilst the direction applies. Since the employee will be paid, the employee needs to follow the employer’s direction to not come into the workplace.
(8) What happens if my employee’s family member is sick with coronavirus?
If an employee needs to look after a family member or a member of their household who is sick with coronavirus, they are entitled to take paid carer’s leave. If that leave balance is exhausted, your employee might wish to consider other alternatives, such as taking paid personal leave, annual leave, long service leave or leave without pay.
If a member of the employee’s household is sick with coronavirus, employers should direct that employee to obtain medical clearance that he or she is fit to perform work.
Employers should request medical clearance prior to an employee returning to work.
(9) What if my employee cannot attend work because his or her child’s school is closed due to concerns about the coronavirus?
Employees who cannot come to work because they need to care for a child whose school has closed will ordinarily need to use carer’s leave to be paid for their absence.
A school closing on short notice and for a short period due to concerns about coronavirus (for example, because someone at the school has tested positive) is an unexpected emergency for the purpose of carer’s leave.
(10) What if my operational needs reduce because of a downturn in business – how can I save my business?
Pursuant to the Fair Work Act, an employer standing down employees without pay (on the employer’s own accord) is not available due to a downturn in business as a result of the coronavirus.
Under the Fair Work Act, an employee can only be stood down without pay if they cannot be usefully employed because of equipment break down, 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. Coronavirus is not covered under that definition.
Enterprise agreements and employment contracts can have different or extra rules about when an employer can stand down an employee without pay.
There are a range of other options available in order to lawfully secure business continuity during the current economic climate. Options could include:
- directing employees to perform alternate duties or work at alternate locations.
- entering into agreements with employees to work reduced hours.
- entering into agreements with employees to stay at home on unpaid leave.
- entering into agreements with employees to take accrued personal leave, annual leave and/or long service leave, or other flexible options.
- entering into agreements with employees to access their long service leave entitlements early.
- granting employees with low leave balances an advance of paid leave.
- entering into agreements with employees to have temporary salary reductions.
- reducing non-permanent staff.
(11) What if I need to let employees go or reduce their working hours?
Some employers may need to make employees’ positions redundant in response to a business downturn. If an employee’s job is made redundant, you may have to give them redundancy pay.
If you seek to vary an employee’s work roster, you are usually required to seek agreement with that employee to change his or her roster.
(12) Working from home – any suggestions?
Working from home arrangements are usually agreed between an employer and employee. Employers should also consider the nature of the work involved and the suitability of the employee’s home. Workplace health and safety laws still apply even when an employee is working from home.
Where employees are required to record their hours of work (for example, in relation to annualised wage arrangements under some modern awards), this needs to continue when they are working from home. Employers and employees are encouraged to discuss and document how this should occur.
It is timely to review your IT systems and business continuity arrangements to ensure your business can continue to operate remotely if a large number of your workforce need to work from home.
(13) What if the Government, in due course, forces a nationwide shutdown in Australia?
Government ordered shutdown – employee not working from home
If the Government orders a business to close, and staff are not working from home, then the staff are placed on unpaid leave due to a forced shutdown of the business.
In that scenario, the employee can request to access their paid annual leave balance and/or paid long service leave balance. The employer should consider that request as it usually would and also take into account the business’ financial circumstances. There is no obligation on the employer to approve that paid leave request.
Government ordered shutdown – employee working remotely from home
If the Government orders a non-essential business to close, an employer can still request an employee to work remotely from home if that is practicable.
If an employee will be working remotely from home, they are entitled to be paid their usual salary or wage.
Requesting an employee to work remotely from home whilst the Government has ordered a forced shutdown is at the discretion of the employer. If the employer makes a direction for an employee to work remotely from home, then the employee must comply with that direction unless there is a valid and reasonable reason to not comply with that direction.
If the employer makes a direction for an employee to work remotely from home, the employer has an obligation to ensure the employee has adequate resources to work from home (for example, ensuring there is a computer to login at their home) and ensuring the employee’s home is a safe environment for the work to be undertaken in. That can be done via a declaration from the employee that they have a safe working environment at home.
(14) What about my casual employees and independent contractors?
Casual employees do not receive paid sick or carer’s leave entitlements under the Fair Work Act. Casual employees usually are not entitled to be paid when they do not work (for example, if they miss a shift because they are sick due to coronavirus or because they are otherwise required to self-isolate). Casual employees are entitled to 2 days of unpaid carer’s leave per occasion.
Independent contractors are not employees and do not receive paid leave entitlements under the Fair Work Act. However, there are special provisions that deem contract outworkers working in the textile, clothing and footwear industry to be your employees – contact us to discuss if you have contractors working for you in those industries.
If you have a question relating to your workforce and the coronavirus, or are looking for tailored advice for your business, please contact Aaran Johnson on ajohnson@marsdens.net.au or Simon Kumar on skumar@marsdens.net.au or by phoning 02 4626 5077 to discuss.
The contents of this publication are for reference purposes only. This publication does not constitute legal advice and should not be relied upon as legal advice. Specific legal advice should always be sought separately before taking any action based on this publication.
