As coronavirus (COVID-19) continues to spread across the globe, employers are grappling with how best to protect and manage their employees in these very unusual circumstances.

Pointon Partners has the expertise to assist your business as you deal with these difficult  issues against a backdrop of uncertainty.

Listed below are key issues as we see them:

Meeting your Health and Safety Obligations

Your OHS duty as an employer, to protect your employees and actively reduce or eliminate risks to their health and safety should you guide your decision making in relation to the corona-virus outbreak. Regardless of whether or not the government issues orders for people to work from home, by law you are required to assess the potential risk to your employees and act accordingly.

Employers need to conduct a thorough risk assessment now – looking at your workforce activities, the likelihood and consequence of exposure and the steps that can be taken to mitigate or minimise the risks. Employers in high risk industries will need to go further in assessing their policies and the use of protective equipment.

Employers also need to make sure you are stay up to date and informed of the facts relating to the coronavirus. This will require employers to keep abreast of the latest health information provided by the relevant health departments. We recommend checking the following websites daily:

Employees like most people will be concerned about the repercussions of the coronavirus outbreak and we recommend employers keep their staff informed and provide:

  • Regular updates of the status of the virus– based on information from sources noted above;
  • Advice about good hygiene practices in the work environment– it’s important to emphasise the significance of it;
  • Reminders about importance of staying home if you are unwell and keeping their employer informed; and
  • Access to hand sanitiser and disinfectant wipes– for wiping phones, keyboards, computers and other shared equipment.

Policies on Leave and Flexible Working Conditions

Employers should already have policies in place dealing with leave and how requests for flexible working conditions under the Fair Work Act 2009 (FWA) will be handled. If you don’t have such policies in place please contact Pointon Partners so we can assist you in drafting these policies.

Employers should consider personal leave in the context of the coronavirus outbreak and may wish to amend their existing policies or develop new policies to address whether employees who are required to be isolated or quarantined are entitled to special consideration. Currently the FWA does not have specific rules addressing isolation or quarantine so employers and employees need to come to their own arrangements which may include:

  • taking sick leave if the employee is sick
  • taking annual leave
  • taking any other leave available to them such as long service leave or other leave available under an award, enterprise agreement or employment contract
  • unpaid or paid leave by agreement between the employer and the employee.

What if an employee wants to stay home as a precaution?

If an employee wants to stay home as a precaution against being exposed to coronavirus they need to make a request in writing to work from home (if possible) or take some form of paid or unpaid leave. Such requests are subject to the normal leave application process in the workplace and will turn on whether the employee has a legitimate concern for his/her safety.

There are a number of circumstances that could make an employee’s concerns legitimate such as the person is most at risk of serious infection as identified by the health department, the employee is following advice issued by the government or a health authority or the employee has raised reasonable concerns which the employer has failed to address.

Subject to any award or agreement that may apply if the employer’s directive to attend work is lawful and reasonable and attending work would not expose the employee to risk, the employer is not required to pay an employee who refuses to attend. The employer also has the option of treating it as a disciplinary matter, again subject to any provisions affecting the employee’s employment. In extreme cases an employee who refuses to attend work could be dismissed but the circumstances of such a situation would need to be carefully reviewed and we would recommend you contact Pointon Partners to discuss before proceeding to terminate employment for this reason.

What if an employer wants their staff to stay at home?

If an employee is at risk of infection from coronavirus for example because the employee has recently travelled to a higher risk or moderate risk country as classified by the Australian government, the employer should request the employee seek medical clearance from a doctor and to work from home (if possible) or not work during the risk period which is currently 14 days.

Where an employer directs a full-time or part-time employee not to work, generally the employee would be entitled to be paid whilst subject to the direction of the employer. Employers also need to consider their obligations under any applicable enterprise agreement, award, contract of employment and workplace policy. Pointon Partners is able to provide guidance and advice in relation to these issues.

What if your employee tests positive to coronavirus and other staff who worked in close proximity need to go into isolation? What if the Federal Government directs all non-essential businesses to close?

Under the FWA an employee can be stood down without pay if they are unable to do useful work because of equipment break down, industrial action or stoppage of work for which the employer cannot be held responsible. Enterprise agreements and employment contracts may include additional regulations about when an employer can stand down an employee without pay. If you are considering utilising the FWA stand down provisions we recommend you contact Pointon Partners to discuss before advising employees.

Conclusion

Employers need to act quickly and proactively to minimise risks to safety as far as is practicable. Employers must keep up to date with fast changing information and provide updates to their employees in a timely manner.  In a highly anxious environment, prudent employers will need to consider how they can support the well-being or their employees. Employers will also need to be mindful to ensure there are no breaches of anti-discrimination laws when putting plans into effect. Employers need to understand that conduct may be unlawful even if it arises from a genuinely held fear by the employer or the employee about the coronavirus outbreak.

Pointon Partners is able to advise and provide guidance on these complex issues. Please contact Michael Bishop, Amelita Hensman or Ben Drysdale on (03) 9614 7707 with any queries.

Authors