Tuesday, 11 February 2020

Employer obligations in response to the coronavirus

Cases of coronavirus have been reported in a growing number of countries, including Australia. As of 10 February 2020, there are 15 cases of coronavirus in Australia.  The outbreak has resulted in the Australian government issuing travel restrictions and isolation requirements for individuals who may have been exposed to coronavirus. For employers, this raises questions about work, health and safety obligations and dealing responsibly with affected employees. Businesses must follow current government advice, which is shifting as the handling of coronavirus develops, and manage employee leave requests and appropriate work arrangements for those affected.

What is the current advice from the Australian government?

The initial outbreak was detected in Wuhan, Hubei Province, China in late December 2019. The Department of Health has since issued travel and isolation advice for those who have visited mainland China. The government isolation requirements as at 10 February 2020 are:

  • if an individual has travelled to Hubei Province within the past 14 days, they must isolate themselves until 14 days have elapsed after leaving Hubei Province;
  • if an individual has left, or transited through, mainland China on or after 1 February 2020 they must isolate themselves until 14 days after leaving China; and
  • if an individual has been in close contact with a confirmed case of coronavirus, they must isolate themselves for 14 days after last contact with the confirmed case.

These requirements also apply to children and students attending childcare, school or higher education.

Australians have also been advised not to travel to mainland China, including for work related activities.

Australians still in Wuhan or Hubei Province may be facing difficulties in returning to Australia and be placed in quarantine on Christmas Island or in the outskirts of Darwin. These quarantine restrictions are likely to affect a number of workplaces if employees are required to be absent from work during the 14-day quarantine period or are otherwise unable to return to Australia or the workplace.

Employer obligations

Employers must, so far as is reasonably practicable, protect the health and safety of their employees and minimise any potential exposure to coronavirus in the workplace.

Where an employee is displaying symptoms of coronavirus whilst in work (especially if they have recently visited mainland China), such as shortness of breath, fever, cough, sore throat or fatigue, they should be directed to seek immediate medical attention. The employer should isolate the staff member in a single room away from others and call ahead to the GP or hospital to inform them that the staff member may have coronavirus. If the employee is experiencing severe symptoms, such as respiratory difficulties, call 000 and request an ambulance.

Employers should also adhere to government advice, which requires at-risk employees to isolate themselves for a period of 14 days. In these circumstances, it would be reasonable to direct an employee who may have been exposed to coronavirus (based on recent travel to China or contact with a confirmed coronavirus case) to remain off work until they are cleared by a medical professional.

Employers should also consider other proactive measures to ensure coronavirus does not spread within the workplace including by offering appropriate respiratory masks to staff, carefully consider any work-related travel to China and propose working from home arrangements. Employers must also ensure that employees are not victimised or discriminated against on grounds of a disability (which could include coronavirus) or against those who have recently travelled to China. Employers should seek up-to-date medical certificates from affected employees. Where an employee is returning to work from a period of isolation, an employer may request medical clearance where there is a concern the employee is still at risk.

Practical considerations for at-risk employees

  • Paid leave permanent employees who are showing symptoms of coronavirus will be able to utilise paid personal leave for their absence (and casuals should be granted unpaid leave). Paid carer’s leave will be accessible for permanent employees who are providing care to a member of their immediate family who is impacted by coronavirus (again, unpaid leave is available for casuals). Even where an employee is not displaying symptoms of coronavirus, but is bound by the isolation requirements, employers are encouraged to enable permanent employees to access their paid personal leave entitlements (and/or other paid leave entitlements) as this will serve as a deterrent from at-risk employees coming to work.
  • Standing down employees following isolation advice – Under the Fair Work Act employers do have the right to stand down employees where they cannot usefully be employed in certain circumstances which are outside the control of the employer, which may include where an employee has been placed in quarantine. Certain modern awards or enterprise agreements may also contain stand down provisions for unforeseen situations which are outside an employer’s control. 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.
  • Other working arrangements and other measures to protect health and safety – Employers may wish to consider alternative working arrangements where an employee is not showing symptoms of illness but must isolate themselves. If the work can be performed remotely, the employer could allow the employee to work from home.

Other considerations

Employers are encouraged to plan now how to manage any impact on their operations from coronavirus, especially if the situation escalates. 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.

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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.

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