Thursday, 5 March 2020

Update 1: Advice for Employers Dealing with Coronavirus

Coronavirus (COVID-19) is a respiratory illness caused by a new virus that has now spread to 74 countries and regions outside mainland China. New cases are rapidly increasing, especially in South Korea, Italy and Iran.  The number of cases worldwide has now reached more than 80,000, leading several countries to impose stricter travel restrictions in an attempt to limit infection. The Australian government is monitoring the situation and providing the latest travel and medical advice on a daily basis. As of 5 March 2020, 52 cases of coronavirus and two fatalities have been confirmed in Australia.

What is the current advice from the Australian government?

In Australia, the people most at risk of contracting the virus are those who have:

  • recently been in mainland China, Italy, Iran and South Korea;
  • been in close contact with someone who is a confirmed case of coronavirus.

Individuals must isolate themselves for 14 days from the date of:

  • leaving or transiting through mainland China and Iran;
  • close contact with a proven case of coronavirus.

Presently, individuals do not need to isolate if they have only travelled through Hong Kong, Macau or Taiwan.

If an individual has recently returned from mainland China and Iran, it is recommended that they monitor their health for the next 14 days.

If an individual has recently returned from Italy or South Korea and works as a healthcare worker or a residential aged care worker, they should not attend their regular work for 14 days.

Practical considerations for employers

If an employee or their family member is sick with coronavirus

Permanent employees who contract coronavirus can access their paid personal leave for their absence from work. If a permanent employee needs to provide care or support to a member of their immediate family or household who is sick with coronavirus, they can also access paid carer’s leave which is deducted from accrued personal leave entitlements.

For permanent employees who have exhausted their paid carer’s leave, and for all casual employees, they may take up to 2 days unpaid carer’s leave to provide care or support to a member of their immediate family or household.

If an employee has self-quarantined based on government recommendations or is confined in quarantine overseas (without exhibiting any symptoms) including for work related trips

If an employee is stuck overseas in quarantine or required to self-quarantine in line with government advice, including after work-related travel, the employer may stand down the employee without pay as they cannot be usefully employed in circumstances which are outside the control of the employer.

However, the employer may consider alternative arrangements to mitigate financial loss to the employee such as allowing the employee to work from home (if possible) or utilise their accrued paid leave entitlements.

Certain modern awards or enterprise agreements may also contain stand down provisions for unforeseen situations which are outside an employer’s control.

If an employee returns from work related overseas travel and is not required to self-quarantine in accordance with government recommendations but is directed by their employer to self-quarantine

If an employee has returned from work-related overseas travel and is then directed by the employer not to attend work (beyond government recommendations), the employer may request the employee take unpaid leave (or utilise accrued entitlements), but cannot compel them to do so and if an alternative arrangement is not agreed, the employer must pay the person directed to stay/work from home.

If an employee refuses to come to work as they are concerned about their safety

If an employee refuses to attend work or undertake work-related travel as a precaution against being exposed to coronavirus, unless the employee is acting consistently with government advice to do so, the employer does not have to pay them or allow them to access leave (but it is open to the employer to agree to do so anyway).

The employer can also consider alternative work arrangements such as working remotely, arranging private transport for employees who take public transport or implement other hygiene protocols such as requiring regular washing of hands, wearing face masks etc.

Depending on the circumstances, an employee could be subject to disciplinary action if they refuse to attend work or perform certain tasks or duties (like refusing to travel interstate) if the direction is lawful and reasonable and does not put the employee at any risk.

However, this is not clear cut, as there are protections for employees (including under discrimination laws, safety legislation, and the general protection provision of the Fair Work Act), that prevent an employer from taking action against employees for raising genuine safety concerns.

If employees are required to take time off work to care for a child who is unable to attend school because of closures

If a school or childcare centre that an employee’s child attends has closed, permanent employees are able to access paid personal/carer’s leave, and casual employees are able to take unpaid carer’s leave to care for their children.

Closures of related businesses and clients which are impacting operations

If a business is required to temporarily cease its operations due to government advice, the employer has a right to stand down any employees that cannot usefully be employed as a result. This is because the closure is in accordance with government advice and outside the control of the employer. This also applies to related businesses (for example, a supplier to a school if schools are required to close) who must cease operations and consequently employees cannot be usefully employed.

Stand down periods are generally unpaid, but an employer may wish to allow an employee to take paid leave (such as annual leave or long service leave) if requested. As above, some modern awards and enterprise agreements may contain stand down provisions for unforeseen situations which are outside an employer’s control.

However, if an employer has ceased operations ahead of government advice, the employer will be required to place its employees on paid leave and the liability for that cost becomes a commercial issue between the employer and the client.

Other considerations

Employers are encouraged to make arrangements for employees to work from home if possible. If an employee is working from home, they need to be paid as usual (the issue of utilising leave – paid or not – does not arise).

It is good practice for employers to be planning now and making it clear to employees what their position would be, particularly if employees are about to embark on voluntary overseas travel).

Steps that employers can take include:

  • Reviewing and updating relevant policies such as Fitness for Work, Leave and Working from Home;
  • Considering temporary flexible work arrangements such as working from home;
  • Reminding employees about hygiene protocols, such as regular washing of hands, wearing face masks and, where possible, avoiding public transport;
  • Supporting the health and wellbeing of those employees who are concerned or affected by coronavirus.

It is advisable to provide regular and up-to-date communications to the workforce about the handling of coronavirus. This could include the latest health and travel information from the Department of Health, together with the measures being taken within the organisation to minimise risk.

This article was produced by HR Legal. It is intended to provide general information only in summary format on legal issues. It does not constitute legal advice, and should not be relied on as such.