Friday, 13 March 2020

Update 2: Employment Law Issues with Coronavirus (COVID-19)

We know you are being inundated with emails about Coronavirus/COVID-19. This email is not about handwashing but rather a quick guide to employment law issues you may be grappling with.

HR Legal are receiving many questions from our clients, and have tried to capture some of the main ones. The answers may vary depending on what may be in your own employment contracts, policies and enterprise agreements.

See below some common Q&As.

We have also provided below a basic working from home checklist.

1.What if an employee has been to a high-risk country or been in contact with a person with coronavirus, and they have to self-quarantine for 14 days - are they on paid or unpaid leave? 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 (annual leave or long service leave, if a permanent employee).

The employer may allow the employee to take paid personal leave, if available, although this is not a requirement since the employee is not sick.

It is best practice to allow the employee to access paid leave where possible.

Where the employee has no paid leave entitlements, employers may wish to allow employees to take annual leave in advance of it being accrued.

It is a matter of discretion for employers to provide paid leave in the circumstances.

Analogy: if a natural disaster occurs, i.e. a flood damages a bridge and an employee cannot get to work, this is outside the control of the employer, and this would mean unpaid leave (although the employee can access paid leave if available).
2.What if an employee has been overseas on holiday, but not to one of the high-risk countries, and the employer asks them to self-quarantine? Should they be on paid or unpaid leave? If the employer decides to request staff to self-quarantine, beyond the government recommendations, the employer may request the employee take unpaid leave (or utilise accrued paid leave such as annual leave or long service leave), but cannot compel the employee to do so. If an alternative arrangement is not agreed, the employer must pay the person directed to stay/work from home.
3.What if an employee presents for work and they are sick? Can the employer send them home to self-quarantine?If an employee is displaying symptoms of a cold, an employer can (under your general obligations to ensure workplace safety) send the employee home and request them to take paid personal leave. Please note there may be a fine line in distinguishing whether an employee is sick or not if they have mild symptoms (if they sneeze, are they sick?). In ambiguous cases, if the employee claims they are well, and the employer is being overly cautious in sending them home, the employee may need to be paid until they seek medical attention and obtain medical clearance.

Analogy: if an employee attends work with a limp, and this is a risk to their own safety and others in the workplace, they would be requested to take personal leave until cleared fit to return to work.
4.What if an employee refuses to come into work, or perform certain duties, as they are concerned about being exposed? If an employee refuses to attend work (or perform certain duties) as a precaution against being exposed to coronavirus, unless the employee is acting in accordance 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 consider alternative work arrangements such as working from home, arranging private transport for employees who take public transport or implement other hygiene protocols.

Depending on the circumstances, an employee could be subject to disciplinary action if they refuse to attend work or perform certain tasks or duties 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.
5.Does the employer have to pay an employee to self-quarantine? It depends.

If the employer is directing an employee to self-quarantine, and this is beyond government recommendations, then see 2 above.

If the employer is directing an employee to self-quarantine, within government recommendations, then see 1 above.
6.Does the employer have to allow an employee to work from home (if they are not sick)?It is up to the individual employer, depending on the type of work they do.

Operationally, there should be a need for the work to be performed, and the employee should have the means to work from home (i.e. access to a computer, phone, etc, where required). Contact the IT department/provider to assist with technology for conferences, telecons, etc.

Ensure Working from Home policies are up to date.
7.What if schools close and an employee has to stay home and care for their child? What type of leave will they be on? 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. This is because personal leave is available to care for someone in an unexpected emergency.

If the children are teenagers and the employee wants to take leave, you may wish to discuss whether it is appropriate to take personal leave.

Analogy: if a school was to close in a bushfire parents can use personal leave to care for their children (even if no-one is sick). Coronavirus is a pandemic – which is also an unexpected emergency.
8.Can I force permanent employees to take annual leave or personal leave if they have to self-quarantine?Generally, the taking of leave should be mutually agreed between the employer and employee. However, in current circumstances it may be necessary to proactively encourage employees to take paid leave, failing which the employee may need to take leave without pay.
9.What about casuals or independent contractors? Workers may be able to access government welfare payments. The government has recently announced that they will waive the one week wait period for access to sickness allowance for casuals and contractors (but not sole contractors).

Otherwise, there is no requirement to pay casual employees or contractors. However, some employers are choosing to provide some paid leave for short periods to assist these workers financially (and also to deter them from attending work if sick).
10.Can the employer direct employees not to travel overseas or interstate? Or attend social events? At present, the Australian government is not enforcing an all-round travel ban. However, all non-essential travel should be carefully considered.

Employers can’t necessarily control what employees do in their private life. However, it is good practice to set expectations in communications. For example, informing staff if they travel to certain countries the employer may require them to take unpaid leave on their return rather than returning to the workplace (or refer to answers 1 and 2 above).
11.What if employees bully a co-worker over fears they have coronavirus? There have been cases where workers have been subject to bullying if they sneeze or cough. Abusive and bullying behaviour should not be tolerated in the workplace. Employees should be reminded of appropriate behaviour and if they fall short subject to disciplinary action.
12.What if the employer needs to close all or part of the business?If a business is required to temporarily cease its operations due to government advice, the employer has a right to stand down 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.

Where possible seek to deploy staff to other duties instead of standing them down.
13.Can the employer force employees to reduce their hours or salary in the event of a slow-down?If “stand down” doesn’t apply, changes to work hours or remuneration for permanent employees could constitute redundancy. As an alternative to this, reductions in hours or salary should be by agreement between the employer and employee.

Analogy: During the GFC many employers negotiated arrangements with full-time staff to work 4 days a week, or agreed to pay freezes, or agreements to utilise leave.
14.Other legal ramifications – including for labour-hire suppliers and other supply chain issues. Communication with all stakeholders is key and aim to be prepared. All levels of management should plan for a slow-down or reduction in staff. Decision-making should be streamlined and redundancy built into processes in the event that businesses need to close at short notice (and that some key staff get sick).

Commercial contracts should be reviewed, particularly force majeure and termination clauses. Management should have a stance on whether to seek to strictly enforce contracts and understand any legal, financial and insurance implications of different decisions.

Where possible, it would be good practice to allow leeway and understanding (rather than strict compliance) as every organisation and every person is affected by this.
15.What else can employers do? Provide regular updates to staff and give them access to practical information – including about their own health and wellbeing.

Where possible support staff with access to PPE, disinfectants and sanitisers.

Stay up to date with advice from federal and state authorities.

Plan for different eventualities (including your own staff or their families being ill).

Show leadership, compassion and understanding. Understand staff are going to be genuinely concerned. Be fair and flexible where possible.

There may be difficult decisions you need to make for the survival of your organisations - communicate the reasons openly.

The decisions you make will impact on your workplace culture once we get through this crisis.

Click on the following link to download: Basic Working from Home Checklist

We can be contacted after hours (and on the weekends) to assist with urgent matters.


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.