Coronavirus (COVID-19)  – The information contained has been produced in good faith based on the Fresh HR Insights Pty Ltd professional interpretation of the relevant legislation and guidance from government and health authorities as of 11 March 2020. As the situation and our understanding of COVID-19 develops, it likely that recommendations from government and health authorities will change. Accordingly, we can make no guarantee that the information within this document entirely corresponds with the position of authorities at the time you are using it. We encourage you to refer to the resources and authorities provided at the bottom of this post for the latest updates and recommendations. 

This post should not be taken as a statement of the law and it is intended as a guide only, and we do not accept any liability for loss or damage sustained on the basis of this information.

BUSINESS CONDITIONS AND DOWNTURN

When can I stand employees down without pay?

Under Fair Work legislation, a permanent employee can only be stood down without pay in limited circumstances. In the case of Coronavirus (COVID-19), if the business is open to trade then you will not be able to stand employees down without pay. However, if the business is not open to trade for a reason that is beyond your control, this may amount to a stoppage of work and allow you to stand employees down without pay. If your business is covered by an industrial instrument such as a modern award or enterprise agreement, it may contain additional terms relating to stand-downs. Before doing so, you should first consider alternative work options, such as asking employees to perform work at another store or work from home if practicable.

If you are unsure of whether your situation permits you to stand down employees with pay, please don’t hesitate to contact Fresh HR Insights Pty Ltd on 0452471960

See also: Absence from Employment

ABSENCE FROM EMPLOYMENT

If I direct an employee to self-isolate, do I have to pay them?

Yes. If you have directed a full-time or part-time employee to self-isolate because they have exhibited symptoms of Coronavirus (COVID-19), then you should ask them to self-isolate and they may take personal leave until they are no longer exhibiting symptoms. You could also request that the employee seek medical clearance that their symptoms are not as a result of Coronavirus (COVID-19), and depending on the result of this, they may not need to self-isolate. If a full-time or part-time employee is absent from work at your direction, and not because they are required by the Australian Government to self-isolate, then you are required to pay them at least their base rate of pay for their contracted hours during this period.

If an employee is self-isolating at the direction of the Australian Government, do I have to pay them?

If the employee can perform their work remotely or from home, then you should pay them for the hours that they work. If they cannot work remotely, and they have been required to self-isolate by the Government, you do not have to pay them. However, employees may in some circumstances access personal leave, or you may agree to allow them to access annual leave, in order to maintain their income.

See also Can I direct employees to take personal leave? and Can I direct employees to take annual leave?

Can I direct employees to take personal leave?

There is no power under Fair Work legislation for an employer to direct an employee to take personal leave. An employee is not strictly entitled to take personal leave unless they are unfit for work because of an illness or injury – that is, unless they are actually displaying symptoms of illness. However, employees may agree to access their personal leave in order to maintain their income, even if they are in self-isolation as a precautionary measure only.

When are employees entitled to take personal leave?

Permanent employees are entitled to take paid personal/carers’ leave if:

  • they are experiencing symptoms of Coronavirus (COVID-19) illness; or
  • they are caring for a member of their household or immediate family.

Permanent and casual employees are entitled to two days’ unpaid carers’ leave per permissible occasion to take care of a member of their household or immediate family who is unwell. As these are minimum entitlements, employers can at their discretion elect to allow employees to access paid personal leave in excess of what has been accrued, or to access additional periods of unpaid leave. We have noticed that a number of employers are choosing to pay their casual and independent contractors during this time however that is a business by business and case by case situation and not an obligation. 

Can I direct employees to take annual leave?

In general, annual leave is taken by agreement between you and the employee. Employees covered by a modern award or enterprise agreement may be directed to take annual leave, but only in the circumstances prescribed by the award or agreement. In most cases, these circumstances are limited to situations where the employee has accrued and excessive leave balance. If an employee is not covered by a modern award or enterprise agreement, you may require the employee to take annual leave if the direction is reasonable. Whether the requirement is reasonable will depend on the circumstances of each particular case. If an employee does not have sufficient annual leave accrued, you may wish to consider granting annual leave in advance. However, modern awards and enterprise agreements may stipulate specific requirements for the provision of annual leave in advance.

Can employees access annual leave while in isolation?

Yes. If an employee is required to self-isolate for Coronavirus (COVID-19), and they wish to access paid annual leave, you can agree to this request.

If an employee refuses to self-isolate, can I direct them to not attend work if they aren’t presenting any symptoms (for example, if they have recently travelled)?

You can direct an employee to not attend work as long as the direction is reasonable. You should be guided by the principle that it will be reasonable to direct an employee to not attend work if:

  • they are returning from a country or region considered by the Australian Government posing a higher risk of transmission; or
  • have been in close contact with a confirmed case of Coronavirus (COVID-19).

You should consider whether the employee should be asked to work from home while in quarantine, otherwise if they refuse to access any paid leave entitlements they may nevertheless be entitled to be paid for the period that they are directed by you to not attend work.

What are my obligations if someone is directed by the Australian Government to self-isolate?

The Australian Government has certain powers under biosecurity legislation, including the power to direct individuals to remain at their place of residence or be isolated in a medical facility. In general, these powers are only to be used as a last resort to limit the spread of the virus. Currently, the Australian Government requires persons to isolate themselves for a period of 14 days if they:

  • have left, or travelled through, mainland China or Iran in the previous 14 days; or
  • have left, or transited through, the Republic of Korea on or after 5 March 2020.

The Australian Government also requires persons who have been in close contact with a proven case of Coronavirus (COVID-19) to isolate themselves for 14 days from the date of the last contact with the confirmed case. If an employee meets these circumstances, they are required to self-isolate even if they are not specifically directed to do so by the Australian Government. If an employee cannot attend work as a result of these requirements, they should be encouraged to access personal leave or annual leave.

Can I ask someone to work remotely whilst in quarantine?

If an employee is able to work remotely whilst in isolation, this option ought to be explored as it allows the employee to remain an active participant in the workforce and maintain their usual income without being required to access their paid leave entitlements. However, if an employee is in self-isolation and accessing annual leave, personal/carer’s leave, or unpaid leave, then you should not ask them to work.

How do I manage productivity if someone is working remotely?

In essence, when managing productivity for employees working from home, you should take similar steps to manage employee productivity as you would in the workplace. That being said, you will have to adapt your approach to account for your inability to visually supervise them and the potential for miscommunication.

A few easy steps employers can take to more effectively manage remote workers include:

  • Set clear expectations

Clearly outline what you want, when you want it done by, how you want it done, and ensure you encourage employees to clarify anything they are not clear on. Avoid assumptions and vague or ambiguous directions.

  • Maintain regular communication

Organise regular catch-ups, and try to maintain multiple lines of communication in addition to email, such as voice calls, and instant messaging.

  • Provide the appropriate technology

Where possible, provide employees working remotely with the technology required to do so. Productivity is likely to suffer where an employee has technical issues, and this is more likely where they rely on personal laptops or home internet.

What happens to casual employees if they are required to go into isolation?

Casual employees are not entitled to paid leave, as this is intended to be accommodated in their higher rate of pay. Employers may choose to make discretionary payments to casual employees during this period, however, any such payment would be purely discretionary and not required by law. It is recommended that independent legal advice be obtained before making any such payment, as these may constitute as evidence that the employee is not truly a casual employee, but a part-time or full-time employee, if not managed correctly. As at the date of post various options to assist casual employees are being considered by the Australian Government, however, no formal policy position has been announced.

Might the disruption caused by Coronavirus (COVID-19) interfere with casual conversion rights?

It is possible that the disruption caused by Coronavirus (COVID-19) could interfere with casual conversion rights under modern awards and enterprise agreements, where applicable. Specifically, the disruption caused may:

  • disrupt a casual employee’s pattern of work to such an extent that they no longer satisfy the eligibility requirements for casual conversion; or
  • result in reasonable grounds for refusing a request for casual conversion.

It should be noted that notwithstanding this, employers can still agree that employee convert from casual to permanent employment if this is appropriate for the needs of their business.

Can I dismiss an employee who refuses to self-isolate?

No. However, if an employee refuses to self-isolate, you may wish to issue them with a reasonable and lawful direction not to attend the workplace until the self-isolation period has passed for the employee. The employee should be paid for their contracted hours at their base rate of pay. If an employee does not follow this reasonable and lawful direction, then this will amount to misconduct, and may provide a valid reason for dismissal. However, employers should always ensure they follow a disciplinary process that affords the employee with natural justice and procedural fairness when considering disciplinary action against an employee that may result in termination of their employee.

Any termination or other disciplinary action because an employee is required to self-isolate, whether they have contracted Coronavirus (COVID-19) or not, may be prohibited under anti-discrimination laws. Before taking any such action, it is recommended that you seek separate legal advice.

HEALTH AND SAFETY

What steps should I take to protect my employees?

Work health and safety laws in Australia require employers to ensure, so far as is reasonably practicable, the health and safety of their workers and others at the workplace. You must identify hazards at the workplace, and take steps to eliminate or reduce any risks.

 To ensure employers are complying with their obligations under WHS laws, SafeWork Australia recommends employers:

  • monitor the information and advice published by the Australian Government;
  • ensure policies and procedures are in place to deal with infection control;
  • communicate the requirement for employees to self-isolate in certain circumstances;
  • eliminate international travel in line with the Australian Government’s recommendations; and
  • provide regular updates to employees.

Employees also have an obligation to ensure their own health and safety, and the health and safety of others in the workplace.

To prevent the spread of the virus, the World Health Organization recommends to:

  • wipe down and disinfect surfaces regularly;
  • encourage employees and customers to frequently wash their hands with soap and water;
  • place hand sanitiser dispensers in prominent places throughout the workplace;
  • ensure that P2/N95 face masks and paper tissues are available; and
  • once the virus starts spreading in your community, ask employees to stay at home if they develop any symptoms.

You should also develop a business contingency plan to deal with likelihood of an outbreak. If there is a confirmed case in the workplace, employers should consider whether to:

  • close the store and direct employees to not attend work or to work from home;
  • have the store professionally cleaned; and
  • notify the health department in your state or territory.

Employees who contract the virus at work may be eligible to make a workers’ compensation claim if they contract the virus due to insufficient measures being taken by their employer to ensure their health and safety. 

See also: Can a person claim workers’ compensation if they contract Coronavirus (COVID-19) while at work? and Should I quarantine goods coming from China before sale?

Do I have to provide my employees with personal protective equipment (PPE)? (i.e. face masks)

It will depend on your workplace, but depending on the risk present in your workplace you may need to. Employers have a duty to ensure a safe and healthy workplace for their employees. Accordingly, if the nature of the workplace poses a significant risk of an employee contracting the virus, then an employer may need to consider making PPE available to their employees.

If an employer decides that face masks or other forms of PPE are appropriate to minimize the risk of an employee contracting Coronavirus (COVID-19), then they will need to provide these masks to employees, and cannot expect employees to purchase their own.

Employers should also:

  • select PPE that is:
    • suitable with regard to the nature of the work, and how Coronavirus (COVID-19) is transmitted; and
      • For example, surgical masks may be adequate, but depending on our latest understanding of how the virus transmits, it may be more appropriate to provide P2/N95 masks.
    • a suitable size and fit for your employees to wear;
  • provide information and training on how to use, wear, store and/or maintain the PPE properly;
  • maintain, repair, and replace PPE to ensure employees are provided with clean, hygienic, and functioning PPE;
  • ensure that employees use or wear the PPE provided.

However, if employers believe that the risk to employees was such that the use of masks was appropriate then employers should also consider whether it is even safe for the shopfront to continue to operate. Particularly as PPE is the least effective form of risk prevention in the workplace, while the elimination of the risk is the most effective.

If an employer believes there is a lower risk of Coronavirus (COVID-19) transmission in their workplace, they may just wish to make use of other risk reduction approaches, such as ensuring employees have access to hand-washing facilities and soap or alcohol-based hand rub to reduce the risk of infection.

Can a person claim workers’ compensation if they contract Coronavirus (COVID-19) while at work?

Yes. It is possible that an employee could claim workers’ compensation if they contracted Coronavirus (COVID-19) in the course of their employment, and their employment was a significant contributing factor. However, as the spread of CCoronavirus (COVID-19) continues, it may be more difficult for the employee to prove that they contracted the virus in the course of employment, as opposed to them contracting it from the wider community outside of work.

 

NEED HELP? Contact the team at Fresh HR Insights HERE

 

 

Further sources of information