Friday, 3 July 2020

Update 8: Important Reminders for Employers in the Current Surge in COVID-19 Cases

With the recent surge in COVID-19 cases in Victoria, and localised lockdowns in Victoria, businesses are going to continue being impacted by the COVID-19 pandemic, at least into the near future.  In this update, we look at:

  1. What to do when there is a suspected or confirmed case of COVID-19 at your workplace.
  2. How to respond if an employee has been in contact with a confirmed COVID-19 case.
  3. What to do if an employer needs to close down all or part of their business due to a localised lock down order.
  4. Can you compel an employee to be tested for COVID-19.
  5. How can an employer identify and control COVID-19 workplace risks to health.

While the surge in COVID-19 cases continues, we aim to provide further updates on relevant employment law issues as and when they arise.

1. What to do when there is a confirmed case of COVID-19 at your workplace

While a large portion of Australians are currently working from home, particularly as a result of Stay at Home Directions, this is not practical for many types of jobs and workplaces.

Employers have a legal duty to protect the health and safety of their employees and minimise any potential exposures to COVID-19 in the workplace.  Unfortunately, while employers can take all reasonable steps to try to avoid an outbreak of COVID-19, for industries where employees cannot work from home, there may still be instances where an employee diagnosed with COVID-19, or suspected of having the virus, has been at the workplace.

An employee reasonably suspected as having the virus attending the workplace

Employers are not expected and should not try to diagnose their employees.  However, if employers reasonably suspect an employee could have the virus, or has been exposed, this creates a health risk at the workplace, and the following steps should be followed:

  1. Isolate – Immediately isolate the person from others and provide a disposable surgical mask to wear, if available.
  2. Seek Advice – Call your local helpline and follow the advice of public health officials. In Victoria, this is the Department of Health and Human Services (DHHS), which have a specialised coronavirus hotline which can be reached by calling 1800 675 398.
  3. Transport – Ensure the person has private transport to their home or to a medical facility.
  4. Clean – Clean and disinfect the areas where the person and any close contacts have been. Use PPE whilst cleaning and do not use those areas until this process is complete.  Consider hiring professional cleaners to do this task.
  5. Identify and Inform – Consider who the person has had close contact with. If instructed by public health officials, advise close contacts they may have been exposed and should follow advice on quarantine requirements.
  6. Review – Consider whether risk management controls relating to COVID-19 are sufficient or need to be updated.

In certain instances, it may be possible to require employees suspected of having COVID-19 to be tested for the virus.

An employee being diagnosed with COVID-19 who was recently in the workplace

If an employee attends the workplace and then is subsequently diagnosed with COVID-19, employers should:

  1. Seek Advice – For Victorian employees, call the DHHS on 1800 675 398.
  2. Identify and Inform – Identify who at the workplace had close contact with the infected person. If instructed by public health officials, tell close contacts they may have been exposed and follow advice on quarantine requirements.
  3. Clean – Clean and disinfect the areas where the person and their close contacts have been. Use PPE when cleaning.  Consider bringing in professional cleaners to do the cleaning for you.  Do not use those areas until this process is complete.  If the workplace is required to close in order for cleaning to occur, where there has been a confirmed COVID-19 case, we consider employers can validly stand down their employees, and will not need to pay employees until the workplace reopens, unless employees can continue working from home.
  4. Review – Review risk management controls relating to COVID-19 and whether any changes are needed to further prevent a recently diagnosed employee attending the workplace while infectious. It is also ideal following a workplace outbreak to consult other employees on work health and safety issues.

Remember, there is not an automatic work health and safety requirement to close an entire workplace, particularly if an infected employee or an employee suspected of being infected, has only visited parts of the workplace.

The above steps are in line with the recommendations from Safe Work Australia.  Further detailed guidance is available on the Safe Work Australia website.

2. How to respond if an employee is a close contact of a person in quarantine or a confirmed COVID-19 case

With a large number of COVID-19 transmissions coming from family to family transmission, it may be possible that you have employees who have come into contact or close contact with a confirmed COVID-19 case.

The Victorian DHHS have defined “close contact” to mean having face-to-face contact for more than 15 minutes with someone who has a confirmed case of COVID-19 or alternatively sharing a closed space with them for more than two hours.

Close contact can happen in many ways, including:

  • living in the same household.
  • being in the same room or office for two hours or more.
  • face-to-face contact for more than 15 minutes in some other setting such as in a car or a lift or sitting next to them on public transport.

If an employee is a close contact with someone who is in quarantine (ie if they live with someone who is in quarantine), there is no need for the employee to quarantine provided the person in quarantine stays well.

If the quarantined individual becomes unwell, they should seek medical advice and get tested for coronavirus.  Employees who have come into close contact with this individual do not need to quarantine unless the individual is confirmed to have COVID-19.

If the individual is confirmed to have COVID-19, the employee will be treated as a close contact of a confirmed case and will be required to quarantine.

What this means is that should employers want employees to stay away from the workplace (including those who are close contacts of a quarantined individuals), employers must continue to pay them unless the employee is a close contact of an individual confirmed to have COVID-19.  Then, it will be up to the employee to utilise any annual leave, or personal leave if they later contract COVID-19 or become sick.  They are also entitled to unpaid quarantine leave, or other forms of government support.

3. What if an employer needs to close down all or part of their business due to a localised lock down order

Given the Victorian Government have ordered localised lock downs across ten Melbourne postcodes, if an employer needs to shut down all or part of their business due to such localised lock down, the process to follow and the options available will be similar to the state-wide lockdown implemented earlier this year.  These include:

  1. Stand Down of Employees.
  2. Changes to employee duties and location of work.
  3. Requests to take annual leave.

Stand Down (for non-JobKeeper employees)

If a business is required to temporarily cease its operations due to a localised lockdown implemented by the government, 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 business if the business is 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.

Stand Down (for Employees receiving JobKeeper payments)

In addition, employers can stand down employees who are eligible for Jobkeeper payments (referred to as a “Jobkeeper enabling stand down”) if the employee cannot be usefully employed for their normal days or hours during the Jobkeeper enabling stand down period due to:

  • changes to business attributable to the COVID-19 pandemic; or
  • government initiatives to slow COVID-19 transmission (including localised lock downs).

This includes a partial stand down.

Employers must give employees at least 3 days’ written notice of an intention to place them on a Jobkeeper enabling stand down (or lesser period by agreement).

During the Jobkeeper enabling stand down (including any partial stand down), the employee must be paid at least the amount of the Jobkeeper payment. An employee’s hourly rate cannot be reduced as a result of a JobKeeper enabling stand down.

Changes to Duties and Location of Work

Recently enacted Jobkeeper legislation also provides that employers can direct employees that receive Jobkeeper payments to perform any duties within their skill and competency, as long as the duties are safe, and the duties are reasonably within the scope of the employer’s business operations.  In addition, most employment contracts contain a clause permitting an employer to vary or modify an employee’s duties to those for which the employee has the skill and competence (regardless of whether the employee is receiving Jobkeeper payments or not).

Employers can also direct employees receiving Jobkeeper payments to perform duties at a place (including the employee’s home) that is different from the employee’s normal workplace if the place is suitable for the duties and it is safe.  If the place is not the employee’s home, the direction must not require the employee to travel a distance that is unreasonable in all the circumstances.   Most employment contracts also contain a clause outlining that employees may be required on occasion to travel away from their predominant workplace to carry out their duties.

As to the utility of changes to location of work, it is important to bear in mind that employees who live or work in localised lockdown regions should avoid travelling to other regions for work where possible.

Where employees are required to travel to and from work and they reside in a localised lockdown region, employers should consider providing their employees with a notice on company letterhead, confirming they are traveling for work purposes.  The notice can then be provided to the Victorian Police in the event that the employee is stopped while on the way to, or from work.

Annual Leave

For non-award covered employees, employers can reasonably direct their employees to take annual leave for a period during a shut down. For award-covered employees, unless employees have ‘excessive’ leave accruals (8 weeks), typically, employers must reach an agreement with employees should they wish for employees to take annual leave during the shut down.  It is also recommended employers check any other applicable industrial instruments when considering annual leave directions.

Importantly to note, employees receiving Jobkeeper payments can be requested to take annual leave and/or take annual leave at half pay, provided that the leave arrangement would not result in the employee’s leave balance falling below two (2) weeks (unless otherwise agreed), regardless of whether the employee is covered by an industrial instrument or not.  Employees cannot unreasonably refuse such a request.

4. Can you compel an employee to be tested for COVID-19?

In discharging an employer’s occupational health and safety obligations, we consider an employer can require an employee to be tested for COVID-19 before they attend or return to the workplace if testing is available to them.

In line with current Victorian Government advice, testing is only available to:

  1. People with the following symptoms, however mild: fever, chills or sweats, cough, sore throat, shortness of breath, runny nose, and loss of sense of smell or taste.
  2. People from the suburban testing priority suburbs including anyone without symptoms. The current list of testing priority suburbs is available on the DHHS webpage.

We suggest taking a collaborative approach with your employees in the first instance, requesting that they take a COVID-19 test should you believe there is a reasonable health risk to your employees.

Any employees who refuse should be dealt with on a case by case basis, which may include keeping them home without pay until they receive a COVID-19 test and provide the employer with the results of the test.  If such action is taken, employees will need to be reimbursed for any unpaid time if their test indicates they are not infected with COVID-19.  If an employee does return a positive test, discussions should then be had with the employee as to whether they wish to utilise paid personal leave or unpaid leave to cover their absence from the workplace.

Refusal to receive a COVID-19 test is arguably refusing to follow a reasonable management action which could also lead to disciplinary action.

5. How can an employer identify and control COVID-19 risks to health

Employers must identify whether there is a risk to the health of their employees from exposure to COVID-19 in the workplace.  This is not an easy exercise.  WorkSafe Victoria have suggested the following steps that can be taken to help identify COVID-19 workplace risks:

  1. Talking to employees who have travelled or are planning to travel, been in contact with a confirmed case of COVID-19 or have symptoms of COVID-19.
  2. Educating and keeping employees up to date on new information.
  3. Monitoring expert advice as the COVID-19 situation changes.
  4. Reviewing infection control policies, procedures, and practices, to ensure they are effective and are being followed.
  5. Considering whether undertaking work activities puts other people (such as clients or members of the public) at risk of exposure to COVID-19.

Where a risk to health is identified at a workplace, employers must take all reasonable steps to eliminate the risk, and when elimination is not possible, reduce the risk so far as reasonably practicable.

Some examples of control measures in the workplace (especially for those coming from areas in lock down) may include:

  • Asking employees to sign a declaration on entry confirming that they (and any member of their household) are not suspected of having COVID-19 and confirming they do not have any symptoms.
  • Conducting temperature checks and confirming they have not taken any medications to reduce fever in the previous 12 hours.
  • Implementing physical distancing in the workplace (if it has not been done already).
  • Providing adequate facilities and/or hand sanitiser to allow employees to maintain good hygiene practices.
  • Providing appropriate PPE accompanied with information and training on why the equipment is required and how to safely use it.
  • Avoiding shared use of phones, desks, offices or other work tools and equipment.
  • Staggering breaks and avoiding common areas.
  • Regular cleaning of the workplace, especially common areas, shared IT equipment and copiers, door handles, bathrooms, staff rooms, lift buttons and access controls.
  • Ensuring everyone in the workplace practices good hygiene as recommended by government agencies.
  • Developing an infection control policy.
  • Cancelling work-related travel.
  • Use videoconferencing or phone conferencing instead of face to face meetings.
  • Ensure employees know when to stay away from the workplace (such as if they have been in contact with a confirmed case of COVID-19 or if they are feeling unwell).

An employer’s duty to eliminate or reduce the risks associated with exposure to COVID-19 in the workplace includes ensuring that employees know what to do or who to notify if they fell unwell or suspect they have been infected and that any unwell employees do not attend the workplace.

Employers should immediately seek DHHS advice if there has been a confirmed case of COVID-19 in their workplace.

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.